The word of the year for plaintiff's lawyers these days is Iqbal, as in Ashcroft v. Iqbal, 129 S.Ct. 1949 (2009), a Supreme Court ruling that requires plaintiffs to file "plausible" complaints and dispenses with the more lenient "notice pleading" under the Federal Rules of Civil Procedure. But Iqbal is still a new case, and the Court of Appeals is still trying to figure it all out.
The case is DiPetto v. United States Postal Service, a summary order initially decided on May 12 before the Court of Appeals pulled the decision and reissued it on July 12. DiPetto is suing pro se for employment discrimination. Pro se plaintiffs get the benefit of the doubt when courts are reviewing the sufficiency of their complaints. In the Second Circuit, the standard is that "dismissal of a pro se claim as insufficiently pleaded is appropriate only in the most unsustainable of cases." More broadly for the rest of us, heightened pleading requirements are not appropriate for civil rights cases alleging racial discrimination.
This cloudy mix of competing legal standards (Iqbal plausibility against solicitude for pro se litigants) compels the Court of Appeals (Miner, Walker and Lynch) to reinstate DiPetto's lawsuit. This is a rare victory in the Second Circuit for a pro se appellant. DePetto wins the appeal because "Appellant stated he was Caucasian, described specific discriminatory actions that had been taken against him by his supervisor, and alleged that he was treated differently, inter alia, on the basis of his race." In addition, the complaint provides relevant details, including the allegation that, "because he was Caucasian, he received less overtime and work breaks than other employees, and that sick and annual leave policies were applied differently to him." As this is "fair notice" to defendant about the basis for the discrimination claim, the complaint is good enough to be reinstated.
The author of this post stated the following, which is supposed to be true:
ReplyDelete"Pro se plaintiffs get the benefit of the doubt when courts are reviewing the sufficiency of their complaints. In the Second Circuit, the standard is that "dismissal of a pro se claim as insufficiently pleaded is appropriate only in the most unsustainable of cases." More broadly for the rest of us, heightened pleading requirements are not appropriate for civil rights cases alleging racial discrimination."
I am sorry to say, for those of us who have proceeded pro se within the Courts, especially the Federal Courts, and especially fighting for Civil and Constitutional Rights, I can assure you it does not happen that way.
There are no liberal readings of the complaint, there are no following the rules by the opposition, there are not even the following of the rules by the Judge.
It is a very, very rare thing indeed for a pro se to win any case within the court system. We have been held to much more stringent standards than attorneys we have fought. We have been denied the right to be heard. We have had an appeal held for 3.5 years without a ruling. We have been denied the Final Ruling to keep us from appealing. We have been told outright by Proabte Court in a letter sending our check paid for the appeal back to us, and told "As we have said, Appeal will not be filed with this Court". And that Ruling was on a Summary Judgment.
So, don't kid yourselves... No matter how much you know, how perfectly you follow the rules of the court, no matter how well your pleadings are written. Chances are good, you are going to lose.
Let me set the record straight on this Constitutional Issue. I have researched over 1,000 cases filed in the past 2 years by Pro Se Litigants and have not found one single case where a pro se litigant has prevailed in Circuit or Superior Court here in Indiana. If this percentage was 85 to 90 percent, I may accept that Attorneys are better than non-attorneys. However, when anything exceeds 90% I begin questioning and the closer it gets to 100% the more I see abuse. Once anything gets to 100% this is all the proof anyone should need to see that the "fix is in" against pro se litigants. Every court has determined that pro se litigants are to be held to the same standards of conduct and responseability, however they have never said that courts and attorneys are to treat pro se litgants as attorneys. In fact, pro se litigants are held to a higher standard than that of attorneys. Courts enforce the Rules of Procedure strictly against pro se litigants, but allow attorneys to skirt the rules as often as they like.
ReplyDeleteIn a case here in Marion County Indiana, I am pursuing a Civil Rights case in Superior Court as a pro se litigant. The attorney for the respondent filed two motions that were granted ex-parte, bot due to a strict reading of the Rules of Proceedure. However, whent he attorney failed to file a response to my complaint within the perscribed time limit, I filed for a Default Judgment, the court denied the default judgment, eventhough the attorney admitted he had filed beyond the time limit. Now, you tell me how this is fair and impartial, I cannot see it.
Notice in this case the pro se litigant lost in the lower court. Even though he prevailed in the court of appeals, he still lost in the lower court. The courts say a person has the right to represent themselves, but this statement is nothing more than lip service. Pro Se Litigants are treated worse than yesterday's trash AND THAT IS A FACT!
Phillip Gray
pwgray@pwgray.com
I Have Been Tracking The KY Appeals Counsel Denial Of Pro SELitigants. They Always Deny The Case For A Procedura Issue, Not On The Merits Of The Case.
ReplyDeleteAs a paralegal and one time pro se litigant (married to an attorney), I have to say that I agree with the others who posted comments. Despite perfect pleadings (which the judges obviously did NOT read), I was treated disrespectfully by opposing counsel and worse, the judges. When I began a successful line of questioning posed to opposing counsel's expert witness, I was cut off by the judge, who then refused to allow me to further question the witness. I was told my pleadings were deficient, when they were not (they had been reviewed by TWO attorneys). When I tried to explain the law to the judge, he said "Don't you try to tell ME the law!" When I attempted to give evidentiary testimony myself, he cut me off and refused to allow me to continue testifying. Their treatment of me as a pro se litigant was very unprofessional and worse, unethical, and a total shock to me as a litigation/trial paralegal who appeared in court at trials regularly (the judges didn't know what my profession was). I'm afraid that judicial bias against pro se litigants is very much alive, well, and a problem that needs to be solved, starting with the attitude of the judiciary, which in my case, was belligerence and condescension.
ReplyDelete