Plausibility and gatekeeping


Does the Maine SJC apply the same plausibility test for complaints as does the federal court under Iqbal and Twombly?  Two recent decisions, one from the First Circuit (Haley v. City of Boston, and one from the SJC (Blackhouse v. Doe, ? have me pondering this point.

First, a refresher on the Iqbal-Twombley test:  Although "detailed factual allegations" are not necessary, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), the complaint must "contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570).

In Haley, the plaintiff was convicted of murder and spent 34 years in jail.  Eventually, he asked for documents under the Massachusetts Public Records Act and found out about documents that, while not exculpatory in themselves, were cogent impeachment materials (revealing a big discrepancy in the statements made by the two key witness sisters, from their initial statements to what they later said).  The conviction unraveled, and released, he filed a civil rights claim.

Haley sued the police officers involved, now dead, and the City under Monell.  As to the latter, he claimed both a failure to train and an alleged policy to withhold documents.  Regarding this alleged policy, Judge Selya  summarizes:  "the detectives' withholding of the sisters' statements occurred pursuant to a standing [Boston Police Department] policy, under which Boston police officers regularly kept helpful evidence from criminal defendants. The complaint further alleges that this policy was designed to encourage successful prosecutorial outcomes despite the existence of evidence pointing to innocence. The complaint contrasts the BPD's policy with that of the district attorney's office, which it alleges had a standing policy to disclose all known exculpatory and impeachment evidence in full compliance with Brady."

The Court found the question whether the plausibilty test was met was "close" but ruled for the plaintiff, stating:  "We do not reach this conclusion lightly. Evaluating the plausibility of a pleaded scenario is a 'context-specific task that requires the reviewing court to draw on its judicial experience and common sense.' Iqbal, 129 S. Ct. at 1950. Disclosure abuses are a recurring problem in criminal cases, see United States v. Osorio, 929 F.2d 753, 755 (1st Cir. 1991), and the BPD's failure to disclose the sisters' statements is wholly unexplained. Given the volume of cases involving nondisclosure of exculpatory information and the instant failure to disclose statements that clearly would have undermined the prosecution's theory of the case, we think that the municipal liability claims pleaded by Haley step past the line of possibility into the realm of plausibility.  See Iqbal, 129 S.Ct. at 1949-50. Indeed, if the detectives intentionally suppressed the discoverable statements even when such activity was condemned by the courts (as Haley has alleged), it seems entirely plausible that their conduct was encouraged, or at least tolerated, by the BPD. Although couched in general terms, Haley's allegations contain sufficient factual content to survive a motion to dismiss …."

?Next, Blackhouse.  Here, the majority (Gorman, J.) reversed a dismissal by the District Court of the plaintiff's complaint for protection from abuse for failure to appear at the final hearing.  The plaintiff argued that the dismissal was erroneous because the District Court did not first consider his request for reasonable accommodation of a claimed disability, and the majority agreed.  The dissent (Alexander, J.) said, inter alia, that the complaint was properly dismissed as implausible.

The complaint alleges that the defendant stalked and intimidated the plainitff, and that the plaintiff couldn't appear physically in court because he suffers from "an advanced form of combat-level post-traumatic stress disorder ('PTSD') specific to having survived an abduction and medical torture."

Let us set aside the potential ramifications of granting the requested accommodation versus the right to confrontation, and focus on the plausibility issue.  Justice Alexander noted that the defendant is an 86 year old woman.  In response, the majority said that "neither her age nor Blackhouse's disability allows us to prejudge the veracity of Blackhouse's allegations."  The majority added that while "a mental illness … may prevent an individual from accurately perceiving reality, and, in this case, it may well turn out that Blackhouse's allegations against Doe cannot be supported by evidence," his asserted PTSD, "does not make Blackhouse immune from abuse, harassment, or stalking."

In sum, assuming that the SJC applies a plausibility standard, the SJC found it plausible that an 86-year old woman could be stalking and intimidating someone who alleged he has PTSD because of his "abduction and medical torture."  Additional points Justice Alexander cited in his dissent to support his implausibility conclusion were:  the plaintiff "asserted many bizarre allegations against his neighbor, his landlord, other tenants, and people in the community"; and an attachment to the complaint asserted that the plaintiff had been victimized by "a variety of collaborators," with the vicitimization including '"wrongful confinement,' terrorizing, sexual assault, kidnapping, and attempted kidnapping perpetrated by his landlord, members of the Augusta and Gardiner police departments, and others."  As relief, the plaintiff asked to be given possession of, and the defendant be ordered to leave immediately, the twelve-unit apartment building where they both live (among other things). 

Outside the pleadings, Justice Alexander also noted that the plaintiff had previously filed a protection from harassment claim against his landlord, and had previously made allegations in that case which Justice Alexander quoted regarding claims of extortion and the plaintiff's inability "to relocate outside the thrall of" the landlord; in documents in support of this previous suit, the plaintiff had contended that "he was the victim of a widespread criminal conspiracy that included, among others," the Augusta Housing Authority and Maine Medical Center; "Blackhouse also asserted that he was a witness for the 'FBI' investigating various criminal conspiracies within the State.'"

In concluding that the matter was properly dismissed, Justice Alexander stated that "[t]here is no right to maintain, and force a named defendant to defend, an incredible, frivolous, or bizarre claim.  A person claiming a disability has no greater right than any other person to circumvent the court's essential gatekeeping function on these issues." 

The plaintiff was represented by the Cumberland Legal Aid Clinic.  The defendant did not file a brief.

So what can we glean from these two decisions?  In the First Circuit decision, the panel looked at the internal plausibility of the complaint, informed by their experiences as judges and practices in withholding evidence, citing Osorio.  In the SJC decision, the majority appeared to focus only on the allegations in the complaint itself.  In the majority's estimation, it was not implausible that an 86-year old woman could harass someone, and perhaps, that the plaintiff's alleged mental condition explained and excused the otherwise implausible aspects of the complaint.  The dissent's point, in contrast, was that if the allegations as a whole and context indicate overall implausibility, then dismissal is appropriate and the implausible aspects cannot be excused by the plaintiff's alleged mental condition. 

In the end, does it matter whether an unmeritorious complaint is rejected at the dismissal stage or later?   What interests are we balancing against each other?  The harm in dismissing a complaint too early is not only the risk that the specific plaintiff's claim had some merit to it and thus should have been heard, but also in undermining our system of justice, in which the court house door is open to all.   

On the other hand, there can be serious consequences to allowing an unmeritorious claim to go past the dismissal stage.  Once a plaintiff gets passed a dismissal motion, we're usually off to discovery-land — in Haley, potentially very broad, relating to a city-wide policy –, and the defendant can be put in a difficult position after a 30+ year time lapse in defending itself.  On the other hand, the plaintiff did 34 years of time for a conviction based on an unfair withholding of impeachment materials – in the world of rough justice, giving him some damages might not be deemed objectionable.   

More broadly, the plausibility standard began with antitrust cases.  If you get beyond the dismissal case in such a case, there can be huge litigation costs going forward.  Like a class certification, getting past dismissal can give the plaintiff ammunition to force a settlement, whatever the merits of his claim — thus, there is a countervailing interest in early dismissal to uphold a judicial system in which the merits matter.

The additional potential adverse consequences in Blackhouse are that an 86-year old woman herself is harassed, has no resources to defend herself, and no one is protecting her interests.  The SJC calls her "Doe" to protect her ("Due to the harsh nature of Blackhouse's as yet unadjudicated allegations against the defendant, we are electing to use a pseudonym for the defendant").  But who is going to defend her against these charges?   Who is going to argue her confrontation rights?  The plaintiff has the legal aid clinic; the defendant, no one. As the case goes forward, does the plaintiff get a default and is the defendant kicked out of her housing or otherwise have an injunction imposed on her – which the plaintiff can then enforce in future litigation?  Also, the strapped resources of the district court are further pressed while it must (a) consider the request for accommodation after notice to the parties; and (b) provide a written explanation to those parties and the State Court Administrator for denying the request, accompanied by a copy of the Judicial Branch grievance procedure, potentially triggering additional administrative review and costs.  

Plausible is defined as "[s]eemingly or apparently valid, likely, or acceptable; credible."  As Judge Selya noted, it is more than possibility.  (See Haley: "we think that the municipal liability claims pleaded by Haley step past the line of possibility into the realm of plausibility.")  If the Blackhouse complaint said that the defendant was harassing him because she was a martian, would that make the complaint implausible, or would the Court ignore that allegation, too, because the plaintiff has alleged a mental condition?  What if the plaintiff doesn't allege a mental condition – then would a martian allegation trigger dismissal?  If not, then what allegation is implausible under the SJC's view?  If so, should plausibility depend on whether the plaintiff alleges that he or she has a mental condition?  

In sum, these two decisions do confirm that the Iqbal plausibility test (again assuming the Law Court has adopted it – I'm unaware of any decision in which it has) is not a high hurdle to meet.   The decisions provide cogent examples of two different sets of potential costs in allowing an potentially unmeritorious case to go forward past dismissal.  Should these costs matter when applying the plausibility test?  Should there be a plausibility test at all?  If the plaintiff is judgment proof, there aren't many consequences he suffers if an unmeritorious action is launched to harrass an elderly poor woman.  Should that matter?  What is the court's "gatekeeper" function, as Justice Alexander calls it?  Does allowing a case to go forward despite some unlikely allegations, as in Blackhouse, uphold a strong tradition of access to justice, or undermine faith in the system?