Thomas v. Independence TownshipThomas v. Independence Township
Colm W. Kenny, Esq., Gianni Floro, Esq. (Argued), Tarasi, Tarasi & Fishman, Pittsburgh, PA, for Appellee.
Before SMITH and COWEN, Circuit Judges, and ACKERMAN*, District Judge.
OPINION
COWEN, Circuit Judge.
1 The individual defendants appeal the District Court‘s denial of their qualified immunity defense at the dismissal stage. The District Court found that the allegations of plaintiffs’ complaint adequately plead the commission of acts that violate extremely broad, general propositions of law, and, therefore, denied qualified immunity at the dismissal stage. Today, we make clear that a qualified immunity determination must be made in light of the specific factual context of the case, and when a complaint fashioned under the simplified notice pleading standard of the Federal Rules does not provide the necessary factual predicate for such a determination, the district court should grant a defense motion (whether formally or informally made) for a more definite statement regarding the facts underlying the plaintiff‘s claim for relief.
2 We continue to stand by established precedent that recognizes that a plaintiff has no pleading burden to anticipate or overcome a qualified immunity defense, and a mere absence of detailed factual allegations supporting a plaintiff‘s claim for relief under
3 Because the complaint in this case presents a textbook example of a pleading as to which a qualified immunity defense cannot reasonably be framed, we will vacate the District Court‘s order insofar as it relates to qualified immunity and remand to the District Court with instructions to order the plaintiffs to file a more definite statement. In addition, for the reasons given below, we will reverse the District Court‘s order denying defendants’ motion to dismiss for failure to state a claim with respect to the claims brought under
4 This is a civil rights action brought by Anthony W. Thomas and A.W.T., Inc. d/b/a Independence Deli (“Independence Deli“) against Independence Township (“Township“), Joseph Chiodo, the Chairman of the Township Board of Supervisors, Gene Fleegal, a Township Board member, Fred Schmidt, a Township Board member, Wendy Potts Fleegal, the Township‘s Secretary and Treasurer, and Sam M. Butler, a member of the Board‘s recreation committee (the “Individual Defendants“). The complaint purports to assert, against the Individual Defendants, claims under
5 The complaint alleges that since January of 2001, plaintiffs have pursued the transfer of a restaurant liquor license to the Independence Deli in the Township. The Township has steadfastly opposed the transfer and denied plaintiffs’ successive applicatiоns. In response, plaintiffs have petitioned the state court for redress. The crux of plaintiffs’ complaint is that during this same time frame, the Individual Defendants have engaged in a campaign of harassment and intimidation against plaintiffs.
6 Defendant Sam M. Butler has allegedly made false and defamatory statements to the Township‘s residents about Thomas, his business, and his Lebanese-American ancestry. The Township‘s police officers, whom Board members Joseph Chiodo, Gene Fleegal, and Fred Schmidt have the statutory authority to supervise, have allegedly engaged in the following conduct: (1) “entering the Plaintiffs’ business without probable cause or valid reason;” (2) wrongly “accusing the Plaintiff, Anthony W. Thomas, of violating the law;” (3) “misrepresenting the laws;” (4) “conducting surveillance of Plaintiffs, their businesses, and patrons from an area located across the street from Plaintiffs’ business;” (5) “increasing and heightening police рresence and surveillance;” (6) “subjecting the Plaintiffs to unreasonable and unlawful search and seizure;” and (7) threatening and/or “causing unwarranted investigations of the Plaintiffs by other governmental agencies.” (Complaint ¶ 40.)
7 The complaint alleges that Individual Defendants Joseph Chiodo, Gene Fleegal, and Fred Schmidt were aware of the police misconduct but failed to take any action to abate it. In addition, the complaint avers that the Individual Defendants have “portray[ed] the Plaintiff[s] . . . in a false light,” “act[ed] under color of state law for an unlawful purpose mainly to prohibit Mr. Thomas from engaging in a lawful enterprise, solely based upon Mr. Thomas’ race and ancestry,” and “engag[ed] in the foregoing conduct . . . because of his race.” (Complaint ¶ 40.)
8 The Individual Defendants filed a motion to dismiss arguing, inter alia, that the complaint, insofar as it asserts claims against them in their individual capaсities, should be dismissed on the basis of qualified immunity. They reasoned that “it is impossible to evaluate whether a particular action of a particular individual defendant violated clearly established law, since it is impossible to know, on the basis of the Complaint, what the action is.” (App. at 58.) In an opinion entered March 29, 2005, and a supplemental opinion entered July 27, 2005, the District Court denied the motion to dismiss without prejudice to the Individual Defendants’ right to reassert the qualified immunity defense in a motion for summary judgment based on a more fully developed record.
9 Under the collateral-order doctrine, we have jurisdiction to review the District Court‘s denial of qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985).
II.
A.
10 We have stated that “qualified immunity will be upheld on a 12(b)(6) motion only when the immunity is established on the face of the complaint.” Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001) (citations and internal quotation marks omitted). The Individual Defendants have not argued that their conduct as allegеd in the complaint does not violate clearly established law. Rather, they make the novel argument that plaintiffs’ complaint is subject to dismissal on the basis of qualified immunity because the complaint does not contain any factual allegations that would negate their qualified immunity defense. More specifically, the Individual Defendants claim that they are entitled to qualified immunity because the complaint does not contain factual allegations supporting a claim of violation of clearly established law. This argument is legally unsound.
12 Because qualified immunity bestows immunity from suit, the Supreme Court “repeatedly ha[s] stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991). The Supreme Court has admonished that “[u]ntil this threshold immunity question is resolved, discovery should not be allowed.” Harlow, 457 U.S. at 818, 102 S. Ct. 2727. Thus, “[u]nless the plaintiff‘s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell, 472 U.S. at 526, 105 S. Ct. 2806.
13 Here, the Individual Defendants argue that plaintiffs’ complaint is subject to dismissal because plaintiffs have failed to allege facts showing that the Individual Defendants’ conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Behrens, 516 U.S. at 305, 116 S. Ct. 834. They also contend that plaintiffs should not be allowed to survive a qualified immunity defense at the motion to dismiss stage by crafting a complaint so lacking in factual detail that it effectively avoids a qualified immunity analysis. (Appellant‘s Brief 23.) Their argument is not without some appeal since imposition of such a pleading requirement would facilitate the early resolution of the qualified immunity issue and would avoid the risk of subjecting public officials who are immune to suit from the burdеns of discovery.
14 While facially appealing, the Individual Defendants’ argument ultimately lacks merit because it conflates qualified immunity with the merits of a plaintiff‘s cause of action under
[T]wo — and only two — allegations are required in order to state a cause of action under [
§ 1983 ]. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.
15 Id. at 640, 100 S. Ct. 1920. The Gomez Court observed that neither the language of
16 The Individual Defendants argue that Gomez is no longer good law because the standard for measuring qualified immunity has since changed. At the time the Gomez Court rendered its decision, the standard for measuring qualified immunity contained a subjective component. Id. at 641, 100 S. Ct. 1920. In Harlow, however, the Supreme Court eliminated the subjective good faith component, replacing it with a purely оbjective standard. 457 U.S. at 818-19, 102 S. Ct. 2727. The Individual Defendants question the continued force of the Gomez rule of pleading since the facts relevant to the immunity defense are now no longer exclusively within the knowledge and control of the defendant.
18 We read Crawford-El as a reaffirmation of the rule announced in Gomez that the burden of pleading a qualified immunity defense rests with the defendant, not the plaintiff. Our reading of Crawford-El is consistent with general rules of pleading prescribed by the Federal Rules, which require the plaintiff to set forth only “a short and plain statement of the claim showing that the pleader is entitled to relief,” and place on the defendant the burden to set forth any “matter constituting an avoidance or affirmative defense.”
19 We recognize that the Supreme Court stated in Mitchell and restated in Behrens that “‘[u]nless the plaintiff‘s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.‘” Behrens, 516 U.S. at 306, 116 S. Ct. 834 (quoting Mitchell, 472 U.S. at 526, 105 S. Ct. 2806). Notably, however, neither Mitchell nor Behrens specifically addressed the propriety of imposing a burden of pleading allegations in anticipation of a qualified immunity defense on the plaintiff. Rather, Mitchell and Behrens dealt with the appealability of orders denying qualified immunity. In Mitchell, the Supreme Court “h[e]ld that a district court‘s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of
20 We read the above-referenced statement in Mitchell and Behrens to mean that when a plaintiff, on his own initiative, pleads detailed factual allegations, the defendant is entitled to dismissal before the commencement of discovery unless the allegations state a claim of violation of clearly established law. Mitchell, 472 U.S. at 526, 105 S. Ct. 2806. We do not read Behrens and Mitchell as establishing an unprecedented rule of pleading requiring a plaintiff to set forth allegations negating an affirmative defense.
21 As stated in Gomez and reaffirmed in Crawford-El, the burden of pleading qualified immunity rests with the defendant, not the plaintiff. Therefore, we conclude that a plaintiff has no obligation to plead a violation of clearly established law in order to avoid dismissal on qualified immunity grounds.2 Accordingly, even if we were to assume that the allegations in the complaint were too vague and conclusory to state a claim of violation of clearly estаblished law, that pleading deficiency would not entitle the Individual Defendants to dismissal of the complaint on the basis of qualified immunity or any other ground.
22 Failing that argument, the Individual Defendants make the related argument that, at a minimum, the complaint does not plead allegations supporting a constitutional violation. A court ruling on a qualified immunity issue must make a threshold inquiry as to whether “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer‘s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). Thus, we will consider the threshold issue of whether plaintiffs have alleged a deprivation of a constitutional right at all. See Wright v. City of Philadelphia, 409 F.3d 595, 604-07 (3d Cir. 2005) (Smith, J., concurring). For the reasons stated below, we conclude that, except with respect to the claims brought under
1.
23 As an initial matter, we reject the Individual Defendants’ argument that we should apply a heightened pleading standard in cases in which a defendant pleads qualified immunity. In Evancho v. Fisher, 423 F.3d 347 (3d Cir. 2005), we held that a civil rights complaint brought under
24 In Leatherman, the Supreme Court held that a federal court may not apply a heightened pleading standard in civil rights cases alleging municipal liability under
25 Similarly, in Swierkiewicz, the Supreme Court considered whether a heightened pleading standard applies in employment discrimination cases. 534 U.S. at 508, 122 S. Ct. 992. In holding that a heightened standard does not apply, the Court explained that “Rule 8(a)‘s simplified pleading standard applies to all civil actions, with limited exceptions.” Id. at 513, 122 S. Ct. 992. The Court highlighted that Rule 9(b) provided for greater specificity only with respect to averments of fraud or mistake. Id. The Court reiterated that “complaints in thesе cases, as in most others, must satisfy only the simple requirements of Rule 8(a).” Id. In so concluding, the Court echoed its words in Leatherman: “[a] requirement of greater specificity for particular claims is a result that ‘must be obtained by the process of amending the Federal Rules, and not by judicial interpretation.‘” Id. at 515, 122 S. Ct. 992 (quoting Leatherman, 507 U.S. at 168, 113 S. Ct. 1160).
26 The marching orders of the Supreme Court in both Leatherman and Swierkiewicz are clear: the notice pleading standard of Rule 8(a) applies in all civil actions, unless otherwise specified in the Federal Rules or statutory law. There is no federal rule or statute that prescribes a heightened pleading standard in
27 Applying a notice pleading standard, and construing the facts in a light most favorable to plaintiffs, we now consider whether thе complaint adequately alleges the deprivation of plaintiffs’ constitutional rights. Under a simplified notice pleading standard, a complaint need contain only “a short and plain statement of the claim showing that the pleader is entitled to relief.”
First Amendment Claims
28 In order to plead a retaliation claim under the First Amendment, a plaintiff must allege: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a сausal link between the constitutionally protected conduct and the retaliatory action. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). “[T]he key question in determining whether a cognizable First Amendment claim has been stated is whether ‘the alleged retaliatory conduct was sufficient to deter a person of ordinary firmness from exercising his First Amendment rights.‘” McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)); see also Crawford-El, 523 U.S. at 589 n. 10, 118 S. Ct. 1584 (“The reason why such retaliation offends the Constitution is that it threatens to inhibit exercise of the protected right.“).
29 Here, the complaint alleges that the Individual Defendants have engaged in a campaign of harassment and intimidation in retaliation against plaintiffs for exercising their First Amendment rights. The complaint asserts that the retaliatory action has chilled plaintiffs’ speech and discouraged them from seeking judicial redress. Although “it is generally a question of fact whether a retaliatory campaign of harassment has reached the threshold of actionability under
Fourth Amendment Claim
30 The Fourth Amendment recognizes “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . and no Warrants shall issue, but upon probable cause.”
Fourteenth Amendment Due Process Claim
32 The Fourteenth Amendment prohibits state deprivations of life, liberty, or property without due process of law. Robb v. City of Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984). We note that an individual does not have a protected property interest in reputation alone. Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976). Similarly, the denial of plaintiffs’ application for a liquor license transfer cannot support a due process claim. See Appeal of Spankard, 138 Pa. Super. 251, 10 A.2d 899, 903 (1940). However, “the liberty to pursue a calling or occupation . . . is secured by the Fourteenth Amendment.” Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1259 (3d Cir. 1994) (internal citations and quotation marks omitted).
33 The complaint alleges that the Individual Defendants’ campaign of defamation, harassment, and intimidation has deprived plaintiffs of their liberty and property interests in their business without due process of law. Construing these allegations in plaintiffs’ favor, we conclude that plaintiffs have adequately pled a violation of their Fourteenth Amendment due process rights. Aside from the qualified immunity issue, plaintiffs’ ability to succeed on such a due process claim depends on whether they can show that the alleged harassment “remove[d] or significantly alter[ed]” plaintiffs’ liberty and property interests in their business. See San Jacinto Savings & Loan v. Kacal, 928 F.2d 697, 704 (5th Cir. 1991) (reversing the district court‘s order granting summary judgment and allowing the plaintiff to proceed on her
Fourteenth Amendment Equal Protection Claim
34 The Equal Protection Clause “prohibits selective enforcement of the law based on considerations such as race.” Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000) (“[A] successful equal protection claim[] [may be] brought by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.“). Here, the complaint alleges that the Individual Defendants engaged in a campaign of harassment in order to deprive plaintiffs of their “right to not have the law enforced in a selective fashion against them.” (Complaint ¶ 50.) The complaint avers that the Individual Defendants engaged in the misconduct “solely based upon Mr. Thomas’ race and ancestry,” and that plaintiffs are “subject to the exercise of police and official power and actions to which similarly situated persons are not subject by the Defendants.” (Complaint ¶¶ 41, 60.) Based upon these allegations, we conclude that plaintiffs have adequately alleged an equal protection claim. See Desi‘s Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 423-26 (3d Cir. 2003) (indicating, without deciding, that a campaign of harassment undertaken against plaintiffs with a racially discriminatory intent might support an equal protection claim).6
42 U.S.C. § 1985(3) and 42 U.S.C. § 1986
35 Section 1985(3) permits an action to be brought by one injured by a conspiracy formed “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (quoting
[E]very person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, оr his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented. . . .
36
Certain Claims Against Wendy Potts Fleegal, the Township‘s Secretary and Treasurer, and Sam M. Butler, Member of the Township Recreation Committee
37 With respect to the claims brought under
38 Based upon the foregoing, we conclude that the complaint adequately alleges cognizable constitutional claims against all Individual Defendants, with the exception of the
C.
39 Our conclusion that the Individual Defendants are not entitled to qualified immunity at this time does not end our inquiry. In order to protect the substance of the qualified immunity defense and avoid unnecessarily subjecting the Individual Defendants who may be immune from suit to needless discovery and the other burdens of litigation, we will remand this case to the District Court with instructions to order plaintiffs to file a more definite statement under Rule 12(e) so that the Individual Defendants may reassert, and the District Court may reconsider, the qualified immunity issue in light of the factual context of this case.
40 We recognize that there is an inherent tension between federal qualified immunity jurisprudence and the concept of notice pleading. See Jacobs v. City of Chicago, 215 F.3d 758, 765 n. 3. (7th Cir. 2000) (noting the tension between qualified immunity and the notice pleading requirements of Rule 8). On one hand, the Supreme Court has stated that resolution of the qualified immunity defense entails a fact-specific inquiry, see Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001), which should be made at the earliest possible stage in litigation, Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991). The Supreme Court has stated that “[u]nless the plaintiff‘s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Behrens v. Pelletier, 516 U.S. 299, 306, 116 S. Ct. 834, 133 L. Ed. 2d 773 (1996) (internal quotation marks and citations omitted). Moreover, the Supreme Court has made denials of qualified immunity at the dismissal stage immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985).
41 On the other hand, the simplified notice pleading standard requires a complaint to plead only a “short and plain statement of the claim showing that the pleader is entitled to relief.”
42 This case, perhaps better than any other, illustrates the incompatibility between the concept of notice pleading and the qualified immunity doctrine, and the resulting quandary faced by defendants pleading the defense. Here, plaintiffs have crafted a complaint lacking in detailed factual allegations. While the complaint complies with the simplified notice pleading standard of the Federal Rules, which itself is a close call, it clearly does not provide good fodder for the framing of a qualified immunity defense. The District Court, in turn, was unable to engage in a meaningful fact-specific qualified immunity analysis, and, therefore, denied qualified immunity “without prejudice to [defendants‘] right to raise their arguments again, under
43 Plaintiffs insist that their complaint is amenable to a qualified immunity analysis. They posit that it is clearly established that it is unlawful to harass and intimidate a person based upon his or her race; to conduct searches and seizures of a person without a warrant or probable cause; and to use excessive force against a person in an effort to harass and intimidate. (Response Brief 7-10.) However, these are the kinds of broad propositions of law that cannot guide a court in determining whether a constitutional right is clearly established. If such broad propositions of law were sufficient for purposes of the qualified immunity analysis, “[p]laintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.” Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). Moreover, ”Harlow would be transformed from a guarantee of immunity into a rule of pleading.” Id.
44 In Saucier, the Supreme Court explained that the qualified immunity inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition. . . .” 533 U.S. at 201, 121 S. Ct. 2151. Illustrating the level of specificity with which the constitutional right must be defined, the Saucier Court observed that “the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness . . . is not enough.” Id. at 201-02, 121 S. Ct. 2151. Rather, said the Court, “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id.
2.
46 In order to provide government officials the protections afforded by qualified immunity, a district court must avail itself of the procedures available under the Federal Rules to facilitate an early resolution of the qualified immunity issue. As the Supreme Court has admonished, albeit in the context of unconstitutional-motive сases against public officials, “the trial court must exercise its discretion in a way that protects the substance of the qualified immunity defense . . . so that officials are not subjected to unnecessary and burdensome discovery or trial proceedings.” Crawford-El, 523 U.S. at 597-98, 118 S. Ct. 1584. “‘[A] firm application of the Federal Rules of Civil Procedure’ is fully warranted” and may lead to the prompt resolution of insubstantial claims. Harlow, 457 U.S. at 820 n. 35, 102 S. Ct. 2727 (quoting Butz v. Economou, 438 U.S. 478, 508, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978)).
47 When presented with a complaint that does not lend itself to an early resolution of the qualified immunity issue, a district court has several options. First, a district court may order the plaintiff to reply to the defendant‘s answer pleading qualified immunity. Crawford-El, 523 U.S. at 598, 118 S. Ct. 1584. Second, a district court may grant a defense motion for a more definite statement under Rule 12(e) with respect to the conduct of which the plaintiff complains. Id. The district court should avail itself of these options before addressing the immunity question, which sometimеs requires complicated analysis of legal issues. Id. If the plaintiff‘s action survives these hurdles, the plaintiff ordinarily will be entitled to some discovery, but the district court may limit the timing, sequence, frequency, and extent of that discovery under Rule 26. Id. at 598-99, 118 S. Ct. 1584. Beyond these procedural tools, summary judgment remains a useful tool for precluding insubstantial claims from proceeding to trial. Id. at 600, 118 S. Ct. 1584.
48 The simplified notice pleading rule is made possible by these “pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues.” Conley v. Gibson, 355 U.S. 41, 47-48 & n. 9 (1957), 78 S. Ct. 99. Thus, we charge the district court with the task of utilizing these procedures to protect the substance of the qualified immunity defense. In this regard, we note that the district court has broad discretion to utilize these procedures in a manner that is useful and equitable to the parties. See Crawford-El, 523 U.S. at 600-01, 118 S. Ct. 1584.
49 We wish to highlight the particular usefulness of the Rule 12(e) motion for a more definite statement. Under Rule 12(e), a defendant may move for a more definite statement “[i]f a pleading . . . is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading.”
50 A defendant who makes a motion for a more definite statement under Rule 12(e) may join that motion with a Rule 12(b) motion to dismiss asserting the qualified immunity defense, which should be held in abeyance during the pendency of the Rule 12(e) motion.
52 In this case, the Individual Defendants did not formally move for a more definite statement, but in their Rule 12(b) motion to dismiss they argued that “it is impossible to evaluate whether a particular action of a particular individual defendant violated clearly established law, since it is impossible to know, on the basis of the Complaint, what the action is.” (App. at 58.) Their argument was essentially that the complaint was “so vague or ambiguous that [they] cannot reasonably be required to frame a responsive pleading.”
53 Accordingly, we will vacate the District Court‘s order insofar as it relates to qualified immunity and remand to the District Court with instructions to treat the motion to dismiss as a consolidated motion to dismiss and motion for a more definite statement. Because plaintiffs’ complaint does not provide sufficient factual information for the framing of a proper qualified immunity defense, we instruct the District Court to grant the motion for a more definite statement, although we leave to the District Court‘s discretion whether or not to require the Individual Defendants to “point out the defects complained of and the details desired.”
III.
54 For the foregoing reasons, the order of the District Court entered on March 29, 2005, insofar as it relates to qualified immunity, will be vacated, and the case remanded with the instructions delineated above. The order, insofar as it relates to plaintiffs’ alleged failure to state a claim, will be reversed with respect to the claims brought under