question determination,' and not a form of redress for a past breach of a legal duty.'" 551 F.2d at 4. Since the district court was attempting to make welfare recipients aware of their possible right to file state petitions for refunds, the order was actually granting relief rather than supervising the conduct of the litigation. Further, the order was based upon the court's view that the department's past practices were improper. The court concluded: "In sum, the court's order looks to a 'past breach of a legal duty,' and is not a necessary consequence of compliance in the future with a substantive federal-question determination. 551 F.2d at 5. But see Quern v. Jordan, L. Ed. 2d

S.Ct. (March 5, 1979).

U.S.

47 U.S.L.W. 4241

SECTION XII: MOTION TO DISMISS
FOR FAILURE TO STATE A CLAIM

In a motion to dismiss for failure to state a claim under Rule 12(b) (6) of the Federal Rules of Civil Procedure the allegations of the complaint must be taken as true. 286 Further, "[A] complaint should not

be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would
entitle him to relief. Conley v. Gibson, 355 U.S.
41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80, 84 (1957).
Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40
L. Ed. 2d 90 (1974) explained this preliminary review
of the complaint as follows:

When a federal court reviews

the sufficiency of a complaint,
before the reception of any evidence
either by affidavit or admissions,
its task is necessarily a limited
one.
The issue is not whether a
plaintiff will ultimately prevail
but whether the claimant is entitled
to offer evidence to support the
claims. Indeed it may appear on the
face of the pleadings that a recovery
is very remote and unlikely but that
is not the test. Moreover, it is
well established that, in passing on
a motion to dismiss, whether on the
ground of lack of jurisdiction over
the subject matter or for failure to
state a cause of action, the allegations
of the complaint should be construed
favorably to the pleader.

416 U.S. at 236, 94 S. Ct. at 1686, 40 L. Ed. 2d at 96.

286. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081,

31 L.Ed.2d 263, 268 (1972); Reeves v. City of Jackson, Mississippi, 532 F.2d 491, 493 (5th Cir. 1976).

Statements of fact contained in the defendants' brief cannot be considered, 287 Pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L. Ed. 2d 652 (1972). While the court may be able to dismiss a complaint for failure to state a claim on its own initiative without a motion, the plaintiff should be given notice and opportunity to respond. 288 If the defendant's motion is based upon failure of the complaint to state a claim upon which relief can be granted and is supported by an affidavit or other matters outside the pleading, then Rule 12(b) requires that it be treated as a motion for summary judgment under Rule 56.289 However, the plaintiff must be given notice and opportunity to respond. 290 Torres v. First State Bank of Sierra County, 550 F.2d 1255 (10th Cir. 1977) stated: "We are met with a problem that recurs with more and more frequency. Trial judges receive, and do not exclude, matters outside the pleadings and then grant a motion to dismiss rather than a summary judgement." 550 F.2d at 1256-57.

In the Third Circuit "plaintiffs in civil right$91 cases are required to plead facts with specificity.

287. Tunnell v. Wiley, 514 F.2d 971, 975 n. 5 (3d Cir. 1975).

288. Dougherty v. Harper's Magazine Co., 537 F.2d 758, 761 (3d Cir. 1976).

289. Sprague v. Fitzpatrick, 546 F.2d 560, 563 (3d Cir. 1976), cert. denied, 431 U.S. 937; Jennings v. Davis, 475 F.2d 1271, 1273 (8th Cir. 1973).

290. Winfrey v. Brewer, 570 F.2d 761, 764 (8th Cir. 1978).

291. Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir. 1976). The Aldisert Report (Section II, E n. 27 supra) provides a complaint form for use in prisoner cases which requires the articulation of specific facts. (Aldisert Report at 83-85, 1977 ed.). The committee commented on the form as follows:

The recommended complaint form requires the prisoner-plaintiff to furnish sufficient factual information to determine, in many cases, whether the complaint has merit without requiring a responsive pleading from the

defendant.

In the

However, the Fourth Circuit requires only the "short and plain statement of the claim showing that the pleader is entitled to relief" as required by Rule 8 of the Federal Rules of Civil Procedure. 292 The Seventh Circuit appears to be in accord. 293 Third Circuit a complaint which contains only vague and conclusory allegations can be dismissed, Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967), 294 although the plaintiff should first be given an opportunity to amend, 295

Rotolo v. Borough of Charleroi, 532 F.2d 920 922 (3d Cir. 1976) observed that the Haines standard,

The decision in Estelle v. Gamble [97 S.Ct. 285 (1976)] indicates that the failure to plead the necessary facts may properly result in a dismissal. The opinion of Mr. Justice Marshall indicates that the careful and complete factual allegations in the case made speculation as to what the facts might be unnecessary. [See also Codd v. Velger, 97 S.Ct. 882 (1976).] The committee believes that the use of the recommended form may increase the situations in which frivolous complaints can properly be dismissed sua sponte under 28 U.S.c. § 1915(d).

Aldisert Report at 51-52.

296

292. Bolding v. Holshouser, 575 F.2d 461, 464 (4th Cir. 1978).

293. Durso v. Rowe, 579 F.2d 1365 (7th Cir. 1978) stated: "Under the Federal Rules of Civil Procedure, a plaintiff in a section 1983 action is only 'required to set forth specific illegal misconduct and resultant harm in a way which will permit an informed ruling whether the wrong complained of is of federal cognizance.'" 579 F.2d at 1371.

294. See also Gray v. Creamer, 465 F.2d 179, 182 n. 2 (3d Cir. 1972); Marnin v. Pinto, 463 F.2d 583 (3d Cir. 1972) (general allegations of bad food and miserable living conditions).

295. Dougherty v. Harper's Magazine Co., 537 F.2d 758 (3d Cir. 1976); Borelli v. City of Reading, 532 F.2d 950 (3d Cir. 1976); Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir. 1976).

296. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

which requires that pro se complaints be held to less stringent standards than formal pleadings drafted by lawyers, applies to complaints in which "specific allegations of unconstitutional conduct" are made, while Negrich continues to serve as a barrier to complaints which contain only vague and conclusory allegations.

Although a conspiracy can be the basis for a claim under 42 U.S.C. § 1983, Simpson v. Weeks, 570 F.2d 240 (8th Cir. 1978), 297 conclusory allegations cannot withstand a motion to dismiss. Slotnick v. Staviskey, 560 F.2d 31 (1st Cir. 1977), cert. denied. In Slotnick the court stated:

In an effort to control frivolous
conspiracy suits under 1983,

federal courts have come to insist
that the complaint state with
specificity the facts that, in the
plaintiff's mind, show the
existence and scope of the alleged
conspiracy. It has long been the
law in this and other circuits
that complaints cannot survive a
motion to dismiss if they contain
conclusory allegations of conspiracy
but do not support their claims with
references to material facts.

560 F.2d at 33. Similarly, in Ostrer v. Aronwald, 567 F.2d 551 (2d Cir. 1977), the court stated:

1978).

297. See also Slavin v. Curry, 574 F.2d 1256, 1261 (5th Cir.