A gentle reader, Lawyer, commented yesterday:

With all of your discussion about how Twombly radically changed the pleading standard under the Federal rules, it seems there would have been some discussion of the Supreme Court’s decision in Erickson v. Pardus from Monday, June 4.  Any comments?


Blawgletter admits that we didn’t pay much attention to Erickson v. Pardus, No. 05-7317 (U.S. June 4, 2007) (per curiam), which involved a prison inmate complaining about his removal from treatment for Hepatitis C.  But Lawyer’s comment prompted reconsideration and review of what we did say about Twombly:

Blawgletter suspects that the repudiation of [the pleading standard in] Conley v. Gibson will exert more gravitational force than the conclusion that competitors’ parallel conduct, without more, doth not an unlawful agreement make.  Will Twombly open the way to searching review of pleadings on motions to dismiss?

We will refrain from predictions.  Conley lasted half a century.  Perhaps we’ll have another 50 years to sort out the implications of Twombly.

Our fresh reading of Erickson v. Pardus doesn’t alter our reluctance to predict.  Yes, the Erickson Court cited Twombly as support for reversing dismissal of the prisoner’s complaint, but it did so on the narrow ground that the inmate sufficiently alleged life-threatening "harm". 

We suppose that the reversal itself signals that the Court doesn’t believe Twombly "radically changed the pleading standard", as Lawyer puts it.  But the Court did revise the standard.  We’ll save our assessment of impact until the impact becomes clearer.

Barry Barnett

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