Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-14-2006

Thomas v. Independence Twp
Precedential or Non-Precedential: Precedential

Docket No. 05-2275




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                                   PRECEDENTIAL

      UNITED STATES COURT OF APPEAL
          FOR THE THIRD CIRCUIT


                    No. 05-2275


      ANTHONY W. THOMAS, A.W.T., INC.,
           t/d/b/a Independence Deli

                          v.

  INDEPENDENCE TOWNSHIP; JOSEPH CHIODO,
    Individually and as a member of the Independence
   Township Board of Supervisors; GENE FLEEGAL,
 Individually and as a member Independence Township
   Board of Supervisors; WENDY POTTS FLEEGAL,
    Individually and as Secretary and Treasurer of the
 Independence Township Board of Supervisors; FRED
SCHMIDT, Individually and as a member Independence
    Township Board of Supervisors; SAM BUTLER,
 Individually and as a member Independence Township
                   Board of Supervisors

           Joseph Chiodo, Gene Fleegal,
  Wendy Potts Fleegal, Fred Schmidt and Sam Butler,

                                   Appellants



   On Appeal from the United States District Court
      for the Western District of Pennsylvania
            (D.C. Civil No. 04-cv-01671)
       District Judge: Hon. Gary L. Lancaster


               Argued March 31, 2006
        BEFORE: SMITH and COWEN, Circuit Judges,
             and ACKERMAN*, District Judge

                   (Filed September 14, 2006)

Alan E. Johnson, Esq. (Argued)
Marshall, Dennehey, Warner,
  Coleman & Goggin
600 Grant Street
2900 U.S. Steel Tower
Pittsburgh, PA 15219

Counsel for Appellants

Colm W. Kenny, Esq.
Gianni Floro, Esq. (Argued)
Tarasi, Tarasi & Fishman
510 Third Avenue
Pittsburgh, PA 15219

Counsel for Appellee


                            OPINION


COWEN, Circuit Judge.

       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




*Honorable Harold A. Ackerman, Senior United States District
Judge for the District of New Jersey, sitting by designation.




                                 2
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.

        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 § 1983 does not warrant dismissal of the complaint
or establish defendants’ immunity. Nevertheless, our decision
today recognizes that a lack of factual specificity in a complaint
prevents the defendant from framing a fact-specific qualified
immunity defense, which, in turn, precludes the district court
from engaging in a meaningful qualified immunity analysis. The
appropriate remedy is the granting of a defense motion for a
more definite statement under Federal Rule 12(e). Even when a
defendant does not formally move for a more definite statement,
the district court has the discretion to demand more specific
factual allegations in order to protect the substance of the
qualified immunity defense and avoid subjecting government
officials who may be immune from suit to needless discovery
and the other burdens of litigation.

       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 42 U.S.C. § 1983 and § 1986
against Wendy Potts Fleegal and the claim brought under 42
U.S.C. § 1986 against Sam M. Butler, and remand with

                                  3
instructions to grant plaintiffs leave to amend the complaint. For
the reasons stated below, we will also reverse the District
Court’s order denying defendants’ motion to dismiss for failure
to state a claim with respect to the unlawful taking claim under
the Fifth and Fourteenth Amendments, insofar as the claim is
brought against the Individual Defendants.

                                 I.

       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 42 U.S.C. § 1983 for
deprivations of equal protection, due process, free speech, and
political association, and unreasonable search and seizure, as
well as claims for conspiracy under 42 U.S.C. § 1985(3), neglect
to prevent conspiracy under 42 U.S.C. § 1986, abuse of process,
commercial disparagement, and civil conspiracy.1

        The complaint alleges that since January of 2001,
plaintiffs have pursued the transfer of a restaurant liquor license


       1
        The complaint purports to assert an unlawful taking claim
under the Fifth and Fourteenth Amendments. There is nothing in
the record that indicates that any public official was authorized,
either directly or unofficially, to engage in any taking without
compensation. Further, there cannot be a taking under the
Fourteenth Amendment unless it is shown that property was taken
for public purposes. At oral argument, even when questioned by
the Panel, counsel was unable to articulate how the facts in this
case rose to the level of a public taking cause of action.
Accordingly, we direct the District Court to dismiss the Takings
Clause claim insofar as it is brought against the Individual
Defendants.

                                 4
to the Independence Deli in the Township. The Township has
steadfastly opposed the transfer and denied plaintiffs’ successive
applications. 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.

       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 presence 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.)

       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 ¶
41.)

       The Individual Defendants filed a motion to dismiss
arguing, inter alia, that the complaint, insofar as it asserts claims
against them in their individual capacities, should be dismissed
on the basis of qualified immunity. They reasoned that “it is
impossible to evaluate whether a particular action of a particular

                                  5
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.

       Under the collateral-order doctrine, we have jurisdiction
to review the District Court’s denial of qualified immunity.
Mitchell v. Forsyth, 

, 530 (1985).

                                II.

                                A.

        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, 

, 161
(3d Cir. 2001) (citations and internal quotation marks omitted).
The Individual Defendants have not argued that their conduct as
alleged 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.

        “[T]he qualified-immunity defense shields government
agents from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Behrens v. Pelletier, 

, 305 (1996) (internal
quotation marks, brackets, and citations omitted). An essential
attribute of qualified immunity is the “entitlement not to stand
trial or face the other burdens of litigation, conditioned on the
resolution of the essentially legal question whether the conduct

                                 6
of which the plaintiff complains violated clearly established
law.” 

. The immunity is intended to
protect officials from the potential consequences of suit,
including distraction from official duties, inhibition of
discretionary action, and deterrence of able people from public
service. 

pretrial matters as discovery are to be
avoided if possible, as ‘[i]nquiries of this kind can be peculiarly
disruptive of effective government.’” 

v.
Fitzgerald, 

, 817 (1982)).

        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, 

, 227 (1991). The
Supreme Court has admonished that “[u]ntil this threshold
immunity question is resolved, discovery should not be
allowed.” 

. 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.”

.

        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.” 

. 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 burdens of discovery.

      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 §
1983. In Gomez v. Toledo, 

, 635-36 (1980), the

                                 7
Supreme Court considered the issue of whether, in an action
brought under § 1983 against a public official whose position
might entitle him to qualified immunity, a plaintiff must plead
allegations in anticipation of the affirmative defense. The
Gomez Court began its analysis by elucidating the distinction
between a plaintiff’s cause of action under § 1983 and a claim of
qualified immunity:

       [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.

The Gomez Court observed that neither the language
of § 1983 nor its legislative history suggests that a plaintiff has
the duty to plead facts relevant to a qualified immunity defense
in order to state a claim. See 

Qualified immunity,
explained the Court, is a defense available to the government
official in question, not a part of the plaintiff’s cause of action
which he must denigrate. 

Citing to the Federal
Rules, the Court stated that “[s]ince qualified immunity is a
defense, the burden of pleading it rests with the defendant.” 

R. Civ. P. 8(c) (imposing upon the defendant the
burden of pleading any “matter constituting an avoidance or
affirmative defense”)). The Court concluded that there is “no
basis for imposing on the plaintiff an obligation to anticipate
such a defense. . . 

.

       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. 

In Harlow,
however, the Supreme Court eliminated the subjective good faith
component, replacing it with a purely objective 

. 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.

                                 8
        However, since the date of the Supreme Court’s decision
in Harlow, the Court has reaffirmed the Gomez rule of pleading.
Crawford-El v. Britton, 

, 595 (1998). In Crawford-
El, the Supreme Court considered whether federal courts may
apply a heightened evidentiary standard in § 1983
unconstitutional motive cases brought by prisoners against
government officials. 

In refusing to allow a
heightened evidentiary standard, the Court observed that “we
have consistently declined similar invitations to revise
established rules that are separate from the qualified immunity
defense.” 

Significantly, the Crawford-El Court
stated that it has “refused to change the Federal Rules governing
pleading by requiring the plaintiff to anticipate the immunity
defense.” 

446 U.S. at 639-40). The Court
explained that “questions regarding pleading, discovery, and
summary judgment are most frequently and most effectively
resolved either by the rulemaking process or the legislative

.

        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.” Fed. R. Civ. P. 8 (a), (c).

        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.’” 

(quoting 

). 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

                                 9
extent that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of 29 U.S.C. § 1291
notwithstanding the absence of a final 

. In Behrens, the Supreme Court clarified that an order
denying qualified immunity at the summary judgment stage is
immediately appealable even in cases where the defendant
brought a prior appeal of an unfavorable qualified immunity
ruling at the motion to dismiss 

.
Moreover, the Mitchell Court itself recognized that “a claim of
immunity is conceptually distinct from the merits of the
plaintiff’s claim that his rights have been 

. Indeed, in concluding that a denial of qualified
immunity is immediately appealable, the Mitchell Court
reasoned that a claim of immunity is sufficiently separable from,
and collateral to, the rights asserted in a plaintiff’s action to
satisfy the requirements of the collateral order doctrine. 

In our view, Mitchell supports our conclusion that a
plaintiff need not plead allegations relevant to an immunity
claim in order to set forth “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a).

        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.

. 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.

       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


       2
         Because we conclude that plaintiffs have no duty to plead
allegations in anticipation of a qualified immunity defense, we
rather easily conclude that plaintiffs do not have the concomitant

                                10
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 established 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.

                                 B.

        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, 

, 201 (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,

, 604-07 (3d Cir. 2005) (Smith, J., concurring). For
the reasons stated below, we conclude that, except with respect
to the claims brought under 42 U.S.C. § 1983 and § 1986 against
Wendy Potts Fleegal, and the claim brought under 42 U.S.C. §
1986 against Sam M. Butler, and, as 

, except
with respect to the unlawful taking claim insofar as it is brought
against all of the Individual Defendants, the complaint
adequately alleges the commission of constitutional violations
by the Individual Defendants.
                                  1.

        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, 

(3d Cir. 2005), we held that a
civil rights complaint brought under § 1983 against a


duty to do so with particularity. In the next section of this opinion,
we address the issue of whether plaintiffs have an obligation to
satisfy a heightened pleading requirement with respect to the
allegations supporting their claim for relief.

                                 11
government official need not satisfy a heightened pleading
standard in order to state a claim for relief. 

We
did not expressly address whether a particularity requirement
applies in civil rights actions in which the defendant pleads
qualified immunity. However, we heavily relied upon the
teachings of two Supreme Court cases: Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit, 

(1993), and Swierkiewicz v. Sorema, 

(2002),
and the Supreme Court’s guidance in those cases applies with
equal force in cases in which the defendant raises a qualified
immunity defense.

        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 § 

. The Leatherman Court reasoned that Rule 9(b) of the
Federal Rules imposes a particularity requirement with respect to
averments of fraud and mistake, but does not mention
complaints alleging municipal liability under § 1983. 

opined that imposition of a specificity requirement in
cases alleging municipal liability is a “result which must be
obtained by the process of amending the Federal Rules, and not
by judicial interpretation.” 

in Swierkiewicz, the Supreme Court considered
whether a heightened pleading standard applies in employment
discrimination 

. 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.” 

The Court
highlighted that Rule 9(b) provided for greater specificity only


   3
     The Leatherman Court rejected the argument that a
municipality’s freedom from respondeat superior liability is the
equivalent of immunity from 

. The Court
therefore had no occasion to consider whether a heightened
pleading standard was necessary to avoid evisceration of a
municipality’s immunity from suit or “whether our qualified
immunity jurisprudence would require a heightened pleading in
cases involving individual government officials.” 

                               12
with respect to averments of fraud or mistake. 

reiterated that “complaints in these cases, as in most others, must
satisfy only the simple requirements of Rule 8(a).” 

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.’” 

(quoting

).

        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 § 1983 civil rights actions in which the defendant
pleads a qualified immunity defense. Hence, we now make clear
that which was implied in Evancho: a civil rights complaint
filed under § 1983 against a government official need only
satisfy the notice pleading standard of Rule 8(a), regardless of
the availability of a qualified immunity defense.

                                 2.

        Applying a notice pleading standard, and construing the
facts in a light most favorable to plaintiffs, we now consider
whether the 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.” Fed. R. Civ. P. 8(a). As the Supreme Court has
advised, the Federal Rules “‘do not require a claimant to set out
in detail the facts upon which he bases his claim.’” 

(quoting Conley v. Gibson, 

, 47
(1957)). Rather, the complaint must only “give the defendant
fair notice of what the plaintiff’s claim is and the grounds upon
which it rests.” 

. At the outset, we reject
the Individual Defendants’ argument that the complaint is
subject to dismissal due to the lack of detailed factual
allegations. In Alston v. Parker, 

(3d Cir. 2004), we
noted that a civil rights complaint was not subject to dismissal
due to the absence of factual allegations. 

n.6. We

                                13
reasoned that “a plaintiff need not plead facts,” but, instead,
“need only make out a claim upon which relief can be granted.”

facts be necessary to define the disputed facts
and issues, we noted that other procedural mechanisms, such as
discovery, are available. 

later, in In re Tower Air,
Inc., 

(3d Cir. 2005), we reiterated that “a plaintiff
will not be thrown out of court on a Rule 12(b)(6) motion for
lack of detailed facts.” 

We qualified that “supporting
facts should be alleged, but only those necessary to provide the
defendant fair notice of the plaintiff’s claim and the ‘grounds
upon which it rests.’” Id. (quoting 

).
With these principles in mind, we turn to the question posed in
Saucier, namely, 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 

.

First Amendment Claims

        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 causal link between the constitutionally
protected conduct and the retaliatory action. Mitchell v. Horn,

, 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, 

, 170
(3d Cir. 2006) (quoting Suppan v. Dadonna, 

, 235
(3d Cir. 2000)); see also Crawford-El v. Britton, 

,
589 n.10 (1998) (“The reason why such retaliation offends the
Constitution is that it threatens to inhibit exercise of the
protected right.”).

        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

                               14
seeking judicial redress. Although “it is generally a question of
fact whether a retaliatory campaign of harassment has reached
the threshold of actionability under § 1983,” Suppan, 203 F.3d at
233,4 construing the allegations in plaintiffs’ favor, we conclude
that plaintiffs have adequately pled First Amendment retaliation
claims under the Free Speech and Petition Clauses.5

Fourth Amendment Claim

        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.” U.S. Const. amend. IV.
The Fourth Amendment protection extends in some measure to
businesses. See G.M. Leasing Corp. v. United States, 

, 353 (1977) (noting that corporations have some Fourth
Amendment rights, but, by their special nature, may open
themselves to intrusions that would not be permissible in a
purely private context).

        Here, the complaint sets forth the basic relevant facts and
makes reference to an “unreasonable and unlawful search and
seizure.” (Complaint ¶¶ 40, 49.) The complaint indicates that
the allegedly unreasonable search and seizure occurred at
plaintiffs’ business establishment and was part of a course of
conduct “beginning in 2001.” (Complaint ¶¶ 39-40.) In
addition, the complaint avers that the Individual Defendants
“us[ed] excessive force with the Plaintiff, Anthony W. Thomas.”
(Complaint ¶ 71.) Under the simplified notice pleading
standard, we conclude that plaintiffs have sufficiently alleged a


       4
         In this regard, we note that there is a “dearth of precedent
of sufficient specificity . . . regarding [an individual’s] First
Amendment right to be free from retaliatory harassment.” 

.
       5
          The complaint purports to assert a violation of plaintiffs’
First Amendment right to freedom of political association. We
cannot rule out that with the addition of supporting allegations,
plaintiffs might be able to allege such a constitutional violation.

                                 15
Fourth Amendment claim.

Fourteenth Amendment Due Process Claim

        The Fourteenth Amendment prohibits state deprivations
of life, liberty, or property without due process of law. Robb v.
City of Philadelphia, 

, 292 (3d Cir. 1984). We note
that an individual does not have a protected property interest in
reputation alone. Paul v. Davis, 

, 701 (1976).
Similarly, the denial of plaintiffs’ application for a liquor license
transfer cannot support a due process claim. See Appeal of
Spankard, 

, 903 (Pa. Super. Ct. 1940). However,
“the liberty to pursue a calling or occupation . . . is secured by
the Fourteenth Amendment.” Piecknick v. Commonwealth of
Pennsylvania, 

, 1259 (3d Cir. 1994) (internal
citations and quotation marks omitted).

        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, 

, 704 (5th Cir. 1991) (reversing the
district court’s order granting summary judgment and allowing
the plaintiff to proceed on her § 1983 due process claim where
there was evidence that the police officers’ harassment of
plaintiff and her customers caused the plaintiff to lose so much
business that she was forced to close her business and default on
her lease).

Fourteenth Amendment Equal Protection Claim

       The Equal Protection Clause “prohibits selective
enforcement of the law based on considerations such as race.”
Whren v. United States, 

, 813 (1996); Village of

                                 16
Willowbrook v. Olech, 

, 564 (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, 

, 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
Claims Brought Under 42 U.S.C. § 1985(3) and 42 U.S.C. §
1986

        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, 

, 134 (3d Cir. 2006) (quoting 42 U.S.C. § 1985(3)).
Section 1986 provides as follows:


       6
          The complaint also alleges in generic terms that the
Individual Defendants “enforced [the law] in a selective fashion
against them in retaliation for exercising their [c]onstitutionally
protected rights.” (Complaint ¶ 50.) However, “[a] pure or generic
retaliation claim [ ] simply does not implicate the Equal Protection
Clause.” Watkins v. Bowden, 

, 1354 (11th Cir. 1997);
accord Maldonado v. City of Altus, 

, 1308 (10th Cir.
2006); R.S.W.W., Inc. v. City of Keego Harbor, 

, 440
(6th Cir. 2005).

                                 17
       [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, or
       his legal representatives, for all damages caused by
       such wrongful act, which such person by
       reasonable diligence could have prevented. . . .

42 U.S.C. § 1986. Except to the extent that the § 1986 claim is
brought against defendants Wendy Potts Fleegal and Sam M.
Butler, which is discussed below, we conclude that the
allegations of the complaint adequately allege constitutional
violations which form the basis of plaintiffs’ claims for relief
under § 1985(3) and § 1986.

Certain Claims Against Wendy Potts Fleegal, the Township’s
Secretary and Treasurer, and Sam M. Butler, Member of the
Township Recreation Committee

        With respect to the claims brought under 42 U.S.C. §
1983 and § 1986 against Wendy Potts Fleegal, the Secretary and
Treasurer of the Township, and the claim brought under 42
U.S.C. § 1986 against Sam M. Butler, member of the Township
Recreation Committee, we conclude that the allegations of
plaintiffs’ complaint do not support cognizable claims. There
are no allegations showing that Wendy Potts Fleegal or Sam M.
Butler were personally involved, through personal direction or
actual knowledge and acquiescence, in the wrongs alleged with
respect to these claims. See Rode v. Dellarciprete, 

, 1207 (3d Cir. 1988) (“A[n] [individual government]
defendant in a civil rights action must have personal
involvement in the alleged wrongs; liability cannot be predicated
solely on the operation of respondeat superior. Personal
involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.”) (citations
omitted). As a result, we conclude that the claims brought under
42 U.S.C. § 1983 and § 1986 against Wendy Potts Fleegal, and
the claim brought under 42 U.S.C. § 1986 against Sam M.

                               18
Butler, must be dismissed, with leave to amend.

       Based upon the foregoing, we conclude that the complaint
adequately alleges cognizable constitutional claims against all
Individual Defendants, with the exception of the § 1983 and §
1986 claims against Wendy Potts Fleegal and the § 1986 claim
against Sam M. Butler, and, as 

, the unlawful
taking claim insofar as it is brought against the Individual
Defendants. Accordingly, with those exceptions, the Individual
Defendants are not entitled to dismissal on qualified immunity
grounds and/or for failure to state a claim for relief.

                                C.

        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.
                                   1.

        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, 

,
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, 

, 201 (2001), which should be
made at the earliest possible stage in litigation, Hunter v. Bryant,

, 227 (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, 

, 306 (1996) (internal

                                19
quotation marks and citations omitted). Moreover, the Supreme
Court has made denials of qualified immunity at the dismissal
stage immediately appealable. Mitchell v. Forsyth, 

, 530 (1985).

        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.” Fed.
R. Civ. P. 8(a). A complaint fashioned under a simplified notice
pleading standard often fails to provide sufficient factual
information for the defendant to frame a proper qualified
immunity defense. For the same reason, the district court is
oftentimes hard-pressed to conduct a fact-specific qualified
immunity analysis at an early stage in the litigation.

       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 Federal
Rule of Civil Procedure 56, after the factual record was more
fully developed.” (App. at 9.) As a result, the Individual
Defendants who may be immune from suit must engage in
discovery and succumb to the other burdens of litigation, all the
while forgoing the very protections afforded by qualified
immunity.

       Unsurprisingly, 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

                                20
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, 

, 639 (1987). Moreover, “Harlow
would be transformed from a guarantee of immunity into a rule
of pleading.” 

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. .
. 

. 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.” 

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.” 

not doubt that plaintiffs’ allegations support a
violation of extremely abstract constitutional rights. As the
District Court stated, “a reasonable official would know that
directing or permitting the police to harass a citizen because of
his race or ethnicity, through unjustified warrantless searches,
intimidation, or otherwise, or participating in a conspiracy to do
so, would violate an individual’s constitutional rights.” (App. at
12.) However, when the qualified immunity inquiry is framed at
that level of abstraction, the defense fails in its purpose to protect
government officials who are immune from the burdens of
discovery. Given the Supreme Court’s guidance in Saucier and
Anderson, we decline to sanction such a result.

                                 2.

       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

                                 21
an early resolution of the qualified immunity issue. As the
Supreme Court has admonished, albeit in the context of
unconstitutional-motive cases 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.” 

. “‘[A] firm
application of the Federal Rules of Civil Procedure’ is fully
warranted” and may lead to the prompt resolution of
insubstantial claims. 

n.35 (quoting
Butz v. Economou, 

, 508 (1978)).

        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. 

. 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. 

court should avail itself of
these options before addressing the immunity question, which
sometimes requires complicated analysis of legal issues. 

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. 

Beyond these
procedural tools, summary judgment remains a useful tool for
precluding insubstantial claims from proceeding to trial. 

       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,

, 47-48 & n.9 (1957). 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 

.


                                22
       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.” Fed. R.
Civ. P. 12(e). The Rule 12(e) “motion shall point out the defects
complained of and the details desired.” 

complaint
fashioned under a notice pleading standard does not disclose the
facts underlying a plaintiff’s claim for relief, the defendant
cannot reasonably be expected to frame a proper, fact-specific
qualified immunity defense. In turn, the district court cannot
conduct the kind of fact-specific inquiry contemplated in
Saucier. The Rule 12(e) motion for a more definite statement is
perhaps the best procedural tool available to the defendant to
obtain the factual basis underlying a plaintiff’s claim for relief.

       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. Fed. R. Civ. P. 12(g) (“A party who
makes a motion under this rule may join with it any other
motions herein provided for and then available to the party.”).
When presented with an appropriate Rule 12(e) motion for a
more definite statement, the district court shall grant the motion
and demand more specific factual allegations from the plaintiff
concerning the conduct underlying the claims for relief. Even
when a defendant has not formally expressed the need for a
definite statement, the district court has the discretion to order a
more definite statement, in observance of the Supreme Court’s
mandate to facilitate an early resolution of the qualified
immunity issue and in order to avoid a waste of judicial
resources. See 

(recognizing
the district court’s broad discretion to utilize civil procedures in
a manner that is useful and equitable to the parties); see also
Fed. R. Civ. P. 1 (“The[] [rules] shall be construed and
administered to secure the just, speedy, and inexpensive
determination of every action.”).

      If the plaintiff provides a more definite statement in
compliance with the district court’s order, the defendant may,

                                 23
upon leave of court, supplement the Rule 12(b)(6) motion to
dismiss by framing the qualified immunity argument within the
factual context of the case. Once the motion has been
supplemented, the Rule 12(b)(6) motion asserting qualified
immunity should be expeditiously briefed and considered by the
district court at the earliest possible stage in the litigation. Until
the Rule 12(b)(6) motion is resolved, all discovery must be
stayed. See 

. Of course, if the plaintiff
fails to provide a more definite statement within ten days after
notice of the order or within such other time as the court may fix,
the court may strike the pleading. Fed. R. Civ. P. 12(e).

        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.” Fed. R. Civ. P. 12(e). Indeed, the
District Court recognized that the essence of their argument was
an expressed need for more definite factual allegations. The
District Court observed that “the individual defendants did not
argue the substantive merits of the [qualified immunity] doctrine,
but alleged instead that they were prevented from doing so due
to the factual insufficiency of plaintiffs’ complaint.” (App. at
11.) Given the clear implication of their argument and the
unquestionable need for more specific allegations concerning the
conduct of which plaintiffs complain, we believe that the most
appropriate procedural step in this case is for the District Court
to order a more definite statement.

       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

                                 24
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.” Fed. R. Civ. P. 12(e). We further
instruct the District Court to hold the motion to dismiss in
abeyance during the resolution of the motion for a more definite
statement, and to stay all discovery pending resolution of the
motion to dismiss. Finally, if and when plaintiffs provide a more
definite statement in compliance with the District Court’s order,
we instruct the District Court to reconsider the qualified
immunity issue in light of the factual context of this case.

                                III.

        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 42 U.S.C. § 1983 and § 1986
against Wendy Potts Fleegal and the claim brought under 42
U.S.C. § 1986 against Sam M. Butler, and the case remanded
with instructions to grant plaintiffs leave to amend the
complaint. In addition, the order, insofar as it relates to
plaintiffs’ alleged failure to state a claim, will be reversed with
respect to the unlawful taking claim under the Fifth and
Fourteenth Amendments to the extent that the claim is brought
against the Individual Defendants, and the case remanded with
instructions to the District Court to dismiss the claim to that
extent.




                                25