Gary Marshall Alston v. William Parker

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2683
GARY MARSHALL ALSTON
v.
WILLIAM PARKER; JACK SINGER
(N.J. (Newark) D.C. No. 95-cv-06158)
GARY MARSHALL ALSTON
v.
CARROLL SIMMON; LYNDA
NAVRATIL
(N.J. (Newark) D.C. No. 95-cv-06159)
Gary Marshall Alston,
Appellant
Appeal from the United States
District Court
for the District of New Jersey
(D.C. Civil Nos. 95-cv-06158
and 95-cv-06159)
District Judge: Honorable
William H. Walls
Argued January 15, 2004
Before: SLOVITER, RENDELL and
ALDISERT, Circuit Judges.
(Filed: April 5, 2004)
Joseph B. Young [ARGUED]
New Jersey Protection & Advocacy, Inc.
210 South Broad Street, 3rd Floor
Trenton, NJ 08608
Counsel for Appellant
Joanne Leone
Maria Desautelle [ARGUED]
Office of the Attorney General of NJ
Division of Law
25 Market Street
Trenton, NJ 08625
Counsel for Appellees
OPINION OF THE COURT
RENDELL, Circuit Judge.
At the end of Gary Marshall
Alston’s 17-year sentence in a New Jersey
prison, he was involuntarily committed to
Greystone Park Psychiatric Hospital.
While there, Alston sued various
Greystone employees in a pro se § 1983
complaint, raising several challenges with
respect to his prison sentence and his
psychiatric commitment. Before the
merits of Alston’s claims could be tested,
the District Court granted a motion to
dismiss for failure to state a claim under
Fed. R. Civ. P. 12(b)(6). The Court
concluded that Alston’s pleading did not
meet the factual specificity requirement for
civil rights complaints and dismissed his
complaint. Because we hold that the
District Court subjected Als ton’s
complaint to a heightened pleading
standard no longer applicable in such civil
rights cases, we will reverse.

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I.
Challenging his transfer to
Greystone, Alston filed two pro se
complaints under 42 U.S.C. § 1983 on
December 4, 1995. In those complaints,
which were later consolidated, Alston
sought over $63 million in damages from
four Greystone employees, who he
contended had violated his rights. The
employees included William Parker, Jack
Singer, and Lynda Navratil (collectively,
“Defendants”).1 The complaints, the
pertinent text of which we set forth in the
margin, are not models of clarity.2 Yet,
their thrust is clear enough: Alston
questioned the basis of his transfer to
Greystone and requested the appointment
of counsel to help advance his case.
The District Court referred the
matter to a Magistrate Judge, who granted
Alston’s application for counsel on March
19, 1996. The threshold requirement for
the appointment of counsel to indigent
plaintiffs is the arguable legal and factual
merit of a complaint. See Tabron v.
Grace, 6 F.3d 147 (3d Cir. 1993). The
Magistrate Judge recognized two claims in
Alston’s complaint: 1) a claim that his 17-
year term in prison caused him such harm
that his sentence constituted cruel and
unusual punishment; and 2) that his
involuntary commitment, as Alston put it
“without victim without evidence,”
violated due process. With respect to the
latter claim, the Magistrate Judge cited
Vitek v. Jones, 445 U.S. 480 (1980), in
which the Supreme Court articulated the
minimum procedural protections that must
be afforded to a prisoner who is
transferred to a psychiatric institution.
Such procedures include fair notice and a
hearing at which evidence may be
presented. This Vitek claim is at the heart
of Alston’s complaint. The Magistrate
Judge recognized the legal sufficiency of
these claims, but noted at the same time
the paucity of factual development.
Nevertheless, after considering other
factors, including his doubt that Alston
could adequately present his case without
assistance, he ordered counsel to be
appointed.
Four years later, in August of 2000,
the District Court finally appointed
1Although Alston also named “Carroll
Simmon” as a defendant, the parties have
been unable to identify such an individual.
2With the exception of misspellings, we
set out Alston’s allegations verbatim. In
o n e c o m p l a i n t , A l s t o n s t a t e d :
“Defendant(s) slanderous allege that I was
a threat(s) that got me six (6) month(s)
more in jail without victim without
evidence when than know I have no other
right to petitioner the covered which I am
exercising.” In the other complaint,
Alston stated: “Plaintiff did seventeen (17)
years in hard labor and maximum security
jail after serving this cruel and unusual
punishment(s) I am denied release as the
judiciary promised at the completion of my
jail term I was transfer to another jail for
an year now for allege medical reason(s)
that never had existed until I got in this
jail.”

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3
counsel for Alston.3 By that time, Alston
had been released from Greystone and his
whereabouts were unknown. Eventually,
his counsel successfully located him and
entered into a representation agreement on
November 7, 2000. One month later, on
December 6, 2000, Alston’s counsel filed
a status update with the District Court.
Counsel informed the District Court that it
was attempting to locate, and serve
Alston’s pro se complaint on, the
Defendants. A similar status update was
f i l e d o n F e b r u a r y 2 1 , 2 0 0 1 .
Notwithstanding these updates, on March
20, 2001, the District Court dismissed the
case for lack of prosecution.
Subsequently, Alston’s counsel
successfully served the complaint on three
out of the four named defendants and
petitioned the District Court to reconsider
its dismissal. On January 29, 2002, the
District Court reinstated the case upon
Alston’s motion and vacated its earlier
dismissal order. The Defendants
responded by filing a 12(b)(6) motion,
invoking various defenses, such as defects
in the pleading, witness immunity,
qualified immunity, and sovereign
immunity.
The District Court determined that
Alston’s complaint was fatally defective,
and on that basis, granted the motion to
dismiss. Citing Darr v. Wolfe, 767 F.2d
79, 80 (3d Cir. 1985), the Court observed
that it was “well settled” that civil rights
complaints must be pled with factual
specificity. Concluding that Alston’s
complaint was unsubstantiated and did not
specifically set forth how each defendant
infringed Alston’s rights, the District
Court found that Alston had not met the
pleading requirements necessary to pursue
a § 1983 action. The District Court further
held that Alston had sufficient notice of
this pleading defect, referring to the
Magistrate Judge’s admonition in 1996
that the allegations lacked factual support.4
Accordingly, the District Court entered an
order granting the Defendants’ 12(b)(6)
motion and dismissing the complaint. The
order did not specify whether the dismissal
was with or without prejudice, but
pursuant to Fed. R. Civ. P. 41(b), we treat
the dismissal as an “adjudication upon the
merits.” Subsequently, the District Court
rejected Alston’s motion for reargument
and reconsideration. Alston appeals both
the orders dismissing his complaint and
denying reconsideration.
3There is nothing in the record before us
that explains this unfortunate delay in the
appointment of counsel.
4The District Court initially misspoke
when it stated that counsel had seven years
after its appointment to rectify the
pleadings, since counsel had only been
appointed in 2000. The Court corrected
this error in its response to Alston’s
motion for reconsideration, noting that
Alston’s counsel nevertheless had more
than enough notice and time to amend the
defective complaint.

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II.
Alston’s principal contention on
appeal is that he should have been
permitted to have discovery so as to
comply with the fact-pleading standard
imposed by the District Court. This Court
has long recognized the importance of
discovery in the successful prosecution of
civil rights complaints. See Colburn v.
Upper Darby Township, 838 F.2d 663, 666
(3d Cir. 1988) (“[I]n civil rights cases
‘much of the evidence can be developed
only through discovery’ of materials held
by defendant officials.” (quoting Frazier v.
Southeastern Pa. Transp. Auth., 785 F.2d
65, 68 (3d Cir. 1986)). We acknowledge
Alston’s need for discovery to present his
case, which we discuss more fully below.
But, the lack of discovery was not the real
barrier blocking Alston’s path to relief.
Rather, it was the stringent pleading
standard presupposed by the parties and
the District Court. Our discussion
therefore begins by examining the District
Court’s requirement of factual specificity,
which is in conflict with Fed. R. Civ. P.
8(a)’s simplified notice pleading standard.
We will then consider Alston’s contention
that the District Court should have
presented an opportunity to amend the
complaint before dismissing it with
prejudice. Lastly, we will comment on the
right to discovery in actions such as this.
A.
Jurisdiction was proper in the trial
court based on 28 U.S.C. § 1331. Our
review is predicated on 28 U.S.C. § 1291.
We have plenary review of the District
Court’s grant of a motion to dismiss for
failure to state a claim pursuant to Fed. R.
Civ. P. 12(b)(6). Nami v. Fauver, 82 F.3d
63, 65 (3d Cir. 1996). In considering this
appeal from a Rule 12(b)(6) dismissal, we
accept all allegations as true and attribute
all reasonable inferences in favor of
Alston. Thus, we will affirm the District
Court’s dismissal only if it appears that
Alston could prove no set of facts that
would entitle him to relief. Id. at 65. We
review the District Court’s denial of
reconsideration for abuse of discretion.
Max’s Seafood Café ex rel. Lou-Ann, Inc.
v. Quinteros, 176 F.3d 669, 673 (3d Cir.
1999).
B.
The District Court tested Alston’s
complaint against a pleading requirement
for civil rights cases based on our opinion
in Darr v. Wolfe. The District Court
observed that it was “well settled” that
Third Circuit law requires civil rights
plaintiffs to plead with particularity.5 We
disagree.
Alston’s § 1983 complaint should
have been considered not under a
5In seeking to affirm the District Court’s
order, the Defendants argue that pro se
plaintiffs like Alston are not exempt from
the strictures of heightened pleading.
Brief for Appellee at 9 (citing Ressler v.
Scheipe, 505 F. Supp. 155, 156 (E.D. Pa.
1981)).

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heightened pleading requirement, but
under the more liberal standards of notice
pleading. Although once enforced in
several circuits, including ours, a fact-
pleading requirement for civil rights
complaints has been rejected by the
Supreme Court in no uncertain terms.
Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit, 507
U.S. 163, 168 (1993). In Leatherman, the
Court instructed that Rule 9’s standard for
averments of fraud and mistake should not
be imported to the notice pleading
standard of Rule 8, which requires only “a
short and plain statement of the claim
showing that the pleader is entitled to
relief.” Id. More recently, in
Swierkiewicz v. Sorema N.A., 534 U.S.
506, 513 (2002), the Court reaffirmed its
holding in Leatherman and stated that
“Rule 8(a)’s simplified pleading standard
applies to all civil actions, with limited
exceptions.” Our Court of Appeals has
recognized the Supre me C ourt’ s
abrogation of a heightened pleading
requirement for § 1983 actions. See Ray
v. Kertes, 285 F.3d 287, 297 (3d Cir.
2002) (“[T]he Court [has] explained that
courts should narrowly interpret statutory
language to avoid heightened pleadings
standards.”); Abbott v. Latshaw, 164 F.3d
141, 149 (3d Cir. 1998) (observing that
nothing more is required of § 1983 cases
than the notice pleading requirement of
Rule 8).
While our ruling in Darr, 767 F.2d
at 80, is one of several decisions in which
this Court imposed a higher bar for § 1983
pleadings, see, e.g., Frazier, 785 F.2d at
67; Ross v. Meagan, 638 F.2d 646, 650
(3d Cir. 1981); Rotolo v. Borough of
Charleroi, 532 F.2d 920, 922 (3d Cir.
1976), none of which have been expressly
overruled, these pronouncements preceded
and cannot be reconciled with the Supreme
Court’s holdings in Leatherman and
Swierkiewicz. Insofar as our decisions,
such as Darr, run counter to the principle
of notice pleading in § 1983 actions, they
are not controlling. Fundamentally, a
heightened pleading requirement for civil
rights complaints no longer retains vitality
under the Federal Rules.6
6The Defendants likewise argue on
appeal that Alston’s complaint lacked
sufficient factual support. But a plaintiff
need not plead facts. To withstand a
12(b)(6) motion, a plaintiff need only
make out a claim upon which relief can be
granted. If more facts are necessary to
resolve or clarify the disputed issues, the
parties may avail themselves of the civil
discovery mechanisms under the Federal
Rules. Swierkiewicz, 534 U.S. at 512
(“This simplified notice pleading standard
relies on liberal discovery rules . . . to
define disputed facts and issues and to
dispose of unmeritorious claims.”).
The need for discovery before
testing a complaint for factual sufficiency
is particularly acute for civil rights
plaintiffs, who often face informational
disadvantages. See Colburn, 838 F.2d at
667. Plaintiffs may be unaware of the
identities and roles of relevant actors and,
owing to their incarceration or
institutionalization, unable to conduct a

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Alston’s complaint should have
been subject only to the “short and plain
statement” requirement of Rule 8(a).
Courts are to construe complaints so “as to
do substantial justice,” Fed. R. Civ. P. 8(f),
keeping in mind that pro se complaints in
particular should be construed liberally.
Dluhos v. Strasberg, 321 F.3d 365, 369 (3d
Cir. 2003). Comprising only two
paragraphs in all, Alston’s pro se
complaint was “short” and, despite some
vagueness, sufficiently “plain.” Both the
District Court and the Magistrate Judge
found that the complaint, construed
liberally, set forth cognizable legal claims.
Likewise, the Defendants never argued
that the complaint ran afoul of the short
and plain statement requirement.7 To the
pre-trial investigation to fill in the gaps.
But by itself, this lack of knowledge does
not bar entry into a federal court. The
principles of notice pleading and the
liberal discovery rules allow for
meritorious claims to proceed even if a
confined prisoner cannot adduce all the
necessary facts at the outset. For instance,
our cases permit the naming of fictitious
defendants as stand-ins until the identities
can be learned through discovery. Hindes
v. FDIC, 137 F.3d 148, 155 (3d Cir. 1998).
As the Magistrate Judge here recognized,
counsel appointed under 28 U.S.C.
§ 1915(d) can help litigants like Alston
surmount these obstacles to pleading. But
legal help alone is insufficient; in such
cases, access to discovery may well be
critical. See Gillespie v. Civiletti, 629
F.2d 637, 642 (9th Cir. 1980) (“[T]he
plaintiff should be given an opportunity
through discovery to identify the unknown
defendants, unless it is clear that discovery
would not uncover the identities, or that
the complaint would be dismissed on other
grounds.”); see also Billman v. Indiana
Dep’t of Corr., 56 F.3d 785, 789-90 (7th
Cir. 1995) (Posner, C.J.) (“The peculiar
perversity of imposing heightened
pleading standards in prisoner cases . . . is
that it is far more difficult for a prisoner to
write a detailed complaint than for a free
person to do so, and again this is not
because the prisoner does not know the
law but because he is not able to
investigate before filing suit.”). If
discovery is sought by a plaintiff, as it was
here, and if it would aid in the
identification of responsible defendants or
the lack thereof, district courts should
strongly consider granting it. Because
Alston’s complaint was dismissed before
an opportunity for discovery, any
expectation of factual sufficiency was
premature. It is a first principle of federal
civil procedure that litigants “are entitled
to discovery before being put to their
proof.” Bennett v. Schmidt, 153 F.3d 516,
519 (7th Cir. 1998).
7It is likely, however, that the
Defendants’ pleading defect argument was
a reaction to the fact that portions of
Alston’s complaint made little sense. But
in that case, the parties and the District
Court still had several procedural tools at
their disposal. The Defendants, or the
District Court on its own initiative, may
have sought a more definite statement to

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contrary, their 12(b)(6) motion was replete
with defenses that responded to claims
they discerned in Alston’s complaint.
Although Alston’s complaint
arguably complies with Rule 8(a), we
recognize that it lacks clarity and will
likely require amendment. Indeed, his
c o m p l a i n t h a s y ie l d e d v a r i e d
interpretations. The Magistrate Judge
recognized two claims, one involving the
cruel and unusual punishment clause and
the other a deprivation of due process.
The Defendants, in their 12(b)(6) motion,
focused instead on Alston’s allegations of
“slander,” i.e., that he was committed to
Greystone as a result of false testimony. In
addition to these claims, Alston’s response
to the 12(b)(6) motion included claims
concerning the double jeopardy and ex
post facto clauses of the constitution.
Given these varying interpretations of
what is at issue, we concede that Alston’s
complaint may have lacked enough detail
to have served its function as a guide to
discovery. Cf. McHenry v. Renne, 84 F.3d
1172, 1178 (9th Cir. 1996) (stating that a
complaint should set forth “who is being
sued, for what relief, and on what theory,
with enough detail to guide discovery.”).
Thus, we have no doubt that the complaint
will require amendment. We are equally
certain that Alston may have made some
progress in that regard had he been
afforded the opportunity. The denial of
that opportunity to amend will be taken up
next.
C.
While the District Court’s error in
granting Defendants’ 12(b)(6) motion by
imposing a fact-pleading requirement on
Alston’s complaint mandates that we
remand the case to the District Court for
further proceedings, Alston argues that
irrespective of the appropriate pleading
standard, he should have been given an
opportunity to amend his complaint before
dismissal. Indeed, Alston’s counsel stated
at oral argument that Alston intends to
amend both the allegations and the parties
named in the complaint. In particular, it
appears that Alston will seek to strike all
but the claim that his involuntary
commitment violated due process and seek
to add New Jersey state officials in their
official capacity. We therefore discuss the
issue of amendment as guidance for the
District Court’s consideration on remand.
We have held that even when a
plaintiff does not seek leave to amend, if a
complaint is vulnerable to 12(b)(6)
resolve any ambiguity or vagueness. Fed.
R. Civ. P. 12(e). Matters in the complaint
that were deemed imm aterial o r
impertinent could have been stricken. Fed.
R. Civ. P. 12(f). Alternatively, the District
Court could have dismissed the complaint
without prejudice permitting Alston to
amend the complaint to make it plain. By
contrast, dismissals with prejudice may be
appropriate where a party refuses to file an
amended complaint or if the repleading
does not remedy the Rule 8 violation. See
In re Westinghouse Sec. Litig., 90 F.3d
696, 703-04 (3d Cir. 1996).

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dismissal, a District Court must permit a
curative amendment, unless an amendment
would be inequitable or futile. Grayson v.
Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002) (citing Shane v. Fauver, 213
F.3d 113, 116 (3d Cir. 2000)). In Shane,
we held that this aspect should be
considered and noted in dismissing a claim
for failure to state a claim:
[W]e suggest that district
judges expressly state,
where appropriate, that the
plaintiff has leave to amend
within a specified period of
time, and that application
for dismissal of the action
may be made if a timely
a m e n d m e n t i s n o t
forthcoming within that
time. If the plaintiff does not
desire to amend, he may file
an appropriate notice with
the district court asserting
his intent to stand on the
complaint, at which time an
order to dismiss the action
would be appropriate.
Id. at 116 (quoting Borelli v. City of
Reading, 532 F.2d 950, 951 n.1 (3d Cir.
1976)).8 As we noted in Shane, these
principles apply equally to pro se plaintiffs
and those represented by experienced
counsel. 213 F.3d at 116 (citing District
Council 47 v. Bradley, 795 F.2d 310, 316
(3d Cir. 1986)). Dismissal without leave
to amend is justified only on the grounds
of bad faith, undue delay, prejudice, or
futility. Id. at 115 (citing In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410,
1434 (3d Cir. 1997)).
On remand, the District Court
should offer Alston leave to amend
pursuant to the above procedures for
12(b)(6) dismissals, unless a curative
amendment would be inequitable, futile, or
untimely. Neither the District Court nor
the Defendants made or advocated such a
finding, or even argued that there was bad
faith, undue delay, prejudice, or futility.
Amendments to pleadings are
governed by Rule 15 of the Federal Rules
of Civil Procedure. In particular, Rule
15(a) provides that a party can amend the
complaint to add or substitute parties, as
Alston is apparently intending to do. Rule
15(c), however, sets forth requirements
that determine whether an amendment
adding an entirely new defendant will
relate back to the original date of the filing
of the complaint for purposes of the
8In the very case cited by the District
Court to justify a heightened pleading
requirement, Judge Maris went on to note
that “this court has consistently held that
when an individual has filed a complaint
under § 1983 which is dismissable for lack
of factual specificity, he should be given a
reasonable opportunity to cure the defect,
if he can, by amendment of the complaint
and that denial of an application for leave
to amend under these circumstances is an
abuse of discretion.” Darr, 767 F.2d at 81.

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governing statute of limitations.
The relation back provision of Rule
15 aims to relieve the harsh result of the
strict application of the statute of
limitations. Garvin v. C ity o f
Philadelphia, 354 F.3d 215, 220 (3d Cir.
2003). The issue then becomes whether
the proposed pleading amendment to add
or substitute defendants will relate back to
the date of the filing of the original
complaint.9 Rule 15(c)(3) requires that for
an amendment adding a new party to relate
back, the proposed new defendants must
have had actual or constructive notice of
the institution of the action within the
period set forth by Rule 4(m), i.e., 120
days. See Garvin, 354 F.3d at 220
(explaining that “[t]he parties to be
brought in by amendment must have
received notice of the institution of the
action within 120 days following the filing
of the action, the period provided for
service of the complaint by Rule 4(m) of
the Federal Rules of Civil Procedure”).
The District Court should make all
these determinations in the first instance.10
III.
As we indicated at the outset,
Alston argues that he should have been
given the opportunity to engage in some
discovery in order to live up to the
“specificity” standard the District Court
imposed. We note, first, that, as discussed
above, no such standard exists. Second, to
the extent that in a civil rights action the
Court finds that plaintiff may be
disadvantaged by not having access to
precisely who the relevant actors were, and
their precise roles, perhaps access to some
initial discovery would be advisable. We
have noted the difficulty faced by
plaintiffs in such situations. See Colburn,
838 F.2d at 667. While the Federal Rules
do not provide for discovery in aid of
pleading, as such, nonetheless it would be
beneficial in difficult cases such as this.
But, again, we note that it is not essential
at the pleading stage in order to satisfy the
standard of notice pleading, and the
District Court did not abuse its discretion
in not ordering it.11
The District Court dismissed
Alston’s complaint with prejudice and
without leave to amend. We conclude that
the District Court erred in applying a
heightened pleading standard, and that, in
light of the procedures for 12(b)(6)
dismissal, the District Court should offer
Alston an opportunity to amend his
complaint absent inequity, futility, or
untimeliness. Therefore, we will vacate
9Neither party discussed the issue in its
brief, but were requested by the Court in
advance to be prepared to discuss it at oral
argument.
10Given the nature of our disposition, we
need not address Alston’s contention that
the District Court erred by denying his
motion for reconsideration.
11Rule 26(d) provides that discovery is
not to commence until a discovery
conference has occurred pursuant to Rule
26(f), which the District Court here did not
schedule. Fed. R. Civ. P. 26(d), (f).

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the order dismissing the complaint and will
remand for further proceedings in
accordance with this opinion.

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