Opinion
Civil Action No. 03-3582, Section: I/4.
July 2, 2004
ORDER AND REASONS
This matter is before the Court pursuant to a motion, filed on behalf of defendants, the State of Louisiana through the University of Louisiana Systems, Southeastern Louisiana University ("SLU"), Dr. Brad O'Hara and Dr. Randy Moffett, seeking dismissal of plaintiff's claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Additionally, defendants move the Court to order plaintiff to file a Schultea reply and/or a more definite statement with respect to plaintiff's claims against defendants, O'Hare and Moffett, in their personal capacities. Plaintiff, Jill-Landesberg Boyle, opposes the motion. For the following reasons, defendants' motion to dismiss is DISMISSED IN PART AND GRANTED IN PART. Additionally, defendants' motion for a more definite statement is GRANTED.
FACTS AND PROCEDURAL HISTORY
On December 23, 2003, plaintiff filed this action alleging claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. against SLU, and claims pursuant to 42 U.S.C. § 1983 against defendants, O'Hara and Moffett, in both their official and individual capacities. Additionally, plaintiff alleged a state law claim for intentional infliction of emotional distress against O'Hara and Moffett.Plaintiff is a Jewish female who was hired by SLU on July 1, 1997, to fill the position of Dean of Student Affairs at Southeastern Louisiana University. During the time period relevant to this litigation, defendant, O'Hara, was plaintiff's immediate supervisor. During the same time period, defendant, Moffett, was the SLU Provost.
Id. at ¶ 4.
Id. at ¶ 7.
Id. at ¶ 9.
Plaintiff alleges an ongoing pattern of conduct from September, 1998 through December, 2002, by SLU, O'Hara and Moffett, whereby her attempts to report and act on allegations of sexual abuse and harassment of students and other employees were consistently ignored and/or actively thwarted by the defendants. Plaintiff also alleges that various employees, including her prior supervisor, made derogatory statements with respect to her religion and that SLU had excluded the representation of the Jewish faith in university activities and student groups. Moreover, she alleges that other employees had experienced discrimination at SLU because they were Jewish. According to plaintiff, she reported these instances of religious discrimination to O'Hara and O'Hara took no corrective action in response.
Id. at ¶¶ 9-34. Plaintiff does not allege that she personally was ever sexually harassed or abused by anyone.
Id. at ¶¶ 11, 30, 32, 33, 34.
Id. at ¶ 31.
Id. at ¶ 32.
Plaintiff states that on October 2, 2002, O'Hara informed her that her position as Dean of Students would no longer exist at SLU and that she would be terminated effective January 6, 2003. Plaintiff claims that O'Hara and Moffett's harassment of her and their participation in her termination constitutes unlawful retaliation against her for her exercise of her First Amendment right to report sexual and religious harassment and discrimination occurring at the institution. Additionally, plaintiff claims that SLU discriminated against her in her employment on the basis of her religion and retaliated against her because she reported sexual harassment in the workplace, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
Id. at ¶ 28.
Id. at ¶¶ 35-44.
Id. at ¶ 46.
On February 18, 2004, defendants filed the instant motion pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6) asserting that (1) pursuant to Louisiana law, SLU is not an entity that may be sued and, therefore, plaintiff's Title VII claims against it must be dismissed; (2) that this court lacks subject matter jurisdiction over any claim for damages against O'Hara and Moffett in their official capacities brought pursuant to § 1983; and (3) plaintiff's § 1983 claims against O'Hara and Moffett in their individual capacities should be dismissed because those defendants are entitled to qualified immunity. Alternatively, defendants move for an order requiring plaintiff to file a Schultea reply or a more definite statement to address their assertion of qualified immunity.
I. Standard of Review on a Motion to Dismiss for Lack of Subject Matter Jurisdiction
A motion to dismiss for lack of subject matter jurisdiction should be granted "only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). To assess whether subject matter jurisdiction exists, this Court may look to the complaint and the undisputed facts in the record. See id. When analyzing the complaint, this Court will take the allegations in the complaint as true. Sawar Partnership v. United States, 67 F.3d 567, 569 (5th Cir. 1995). Because the burden of proof on a motion to dismiss for lack of subject matter jurisdiction is on the party asserting jurisdiction, Ramming, 281 F.3d at 161 (citing McDaniel v. United States, 899 F. Supp. 305, 307 (E.D. Tex. 1995)), Landesburg-Boyle "constantly bears the burden of proof that jurisdiction does in fact exist." See id. (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)).
II. Standard of Review on a 12(b)(6) Motion
A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "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 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). This Court will not look beyond the factual allegations in the pleadings to determine whether relief should be granted. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In assessing the complaint, a court must accept all well-pleaded facts in the complaint as true and liberally construe all factual allegations in the light most favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowry v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997). "However, '[i]n order to avoid dismissal for failure to state a claims, a plaintiff must plead specific facts, not mere conclusory allegations. . . .'" Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992) (quoting Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir. 1989)) (alteration in original). "'[C]onclusory allegations and unwarranted deductions of fact are not admitted as true' by a motion to dismiss." Id. (quoting Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1994)). Moreover, "'legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.'" Blackburn, 42 F.3d at 931 (quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)). "[T]he complaint must contain either direct allegations on every material point necessary to sustain a recovery . . . or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial." Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (internal quotation and citation omitted).
III. Motion to Dismiss SLU
SLU has moved to dismiss plaintiff's Title VII claims against it on the ground that SLU is an improper party to this action. Southeastern Louisiana University is designated as part of the University of Louisiana system which is under the supervision and management of the Board of Trustees for State Colleges and Universities (the "Board"). LSA-R.S. § 17:3217. The Board has the power "[s]ue and be sued, including the right to recover all debts owing to the board or any university or college under its management, and to retain legal counsel therefor." LSA-R.S. § 17:3351.
On March 17, 2004, plaintiff filed a supplemental and amending complaint substituting the Board for SLU as a party defendant. Therefore, SLU's motion to dismiss plaintiff's claims against it is moot.
IV. Motion to Dismiss the Official Capacity Damages Claims
Defendants, O'Hare and Moffett, assert that plaintiff's claims brought against them in their official capacities for monetary damages are barred by the Eleventh Amendment. Plaintiff concedes that damages are not available against these defendants in their official capacity, but asserts that the claims are brought against the individual defendants in their personal capacity and, therefore, Eleventh Amendment immunity is not relevant. Moreover, plaintiff argues that the defendants are liable in their official capacities with respect to her monetary claim for future lost wages and benefits because that claim seeks prospective relief and, therefore, that element of damages is not barred by the Eleventh Amendment.
Lawsuits against state officials acting in their official capacity are considered to be lawsuits brought against the state itself and, therefore, such lawsuits are generally barred by the Eleventh Amendment. Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 n. 3 (5th Cir. 1996). As noted by the Fifth Circuit:
The eleventh amendment clearly interposes a jurisdictional bar to suits against a state by private parties who seek monetary relief from the state in the form of compensatory damages, punitive damages, or monetary awards in the nature of equitable restitution, and also to suits against a state agency or state official when the monied award is to be paid from the state treasury.Clay v. Texas Women's University, 728 F.2d 714, 715 (5th Cir. 1984) (citations omitted).
However, under the doctrine of Ex parte Young, the Eleventh Amendment does not preclude lawsuits against a state official in his or her official capacity seeking prospective injunctive relief for violations of federal law because such lawsuits are not treated as actions against the state. See Will, 491 U.S. at 71 n. 10, 109 S.Ct. at 2312 n. 10; Wallace, 80 F.3d 1047 n. 3; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.2d 714 (1908). Nor does it operate to preclude a judgment for monetary damages against individual public officials for claims brought against them in their personal capacities. See Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
The Ex parte Young exception to Eleventh Amendment immunity, which allows a plaintiff to bring an official-capacity claim against a state official for prospective relief, is not without its limits. The Ex parte Young doctrine "does not permit judgment against state officers declaring that they violated federal law in the past." Puerto Rico Aqueduct and Sewer Auth. v. Metcalf Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 688, 121 L.Ed.2d 605 (1993). As explained by the Supreme Court:
Young has been focused on cases in which a violation of federal law by a state official is ongoing as opposed to cases in which federal law has been violated at one time or over a period of time in the past as well as on cases in which the relief against the state official directly ends the violation of federal law as opposed to cases in which that relief is intended indirectly to encourage compliance with federal law through deterrence or directly to meet third-party interests such as compensation.Papasan v. Allain, 478 U.S. 265, 277-78, 106 S.Ct. 2932, 2940, 92 L.Ed.2d 209 (1986). Therefore, the Supreme Court has held that fiscal consequences to state treasuries are permitted if such consequences are "ancillary" to injunctive relief and arise as a "necessary consequence of compliance in the future with a substantive federal-question determination." Edelman v. Jordan, 415 U.S. 651, 667-68, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974).
In contrast, relief obtained against state officials is "retroactive," and thus barred by the Eleventh Amendment, if "[i]t is measured in terms of a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials," and when "[i]t will to a virtual certainty be paid from state funds, and not from the pockets of the individual state officials." Id.; Sessions v. Rusk State Hospital, 648 F.2d 1066, 1069 (5th Cir. 1981) ("An award by a federal court of retrospective relief, i.e., damages, payable from the state treasury, is prohibited by the eleventh amendment even though the suit names a state official as the defendant.") (citation omitted). As explained by the United States Supreme Court:
Relief that in essence serves to compensate a party injured in the past by an action of a state official in his official capacity that was illegal under federal law is barred even when the state official is the named defendant. This is true if the relief is expressly denominated as damages. See, e.g., Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945). It is also true if the relief is tantamount to an award of damages for a past violation of federal law, even though styled as something else. See, e.g., Green v. Mansour, supra 474 U.S., at 69-70, 106 S.Ct., at 426-427; Edelman v. Jordan, 415 U.S. 651, 664-668, 94 S.Ct. 1347, 1356-1358, 39 L.Ed.2d 662 (1974). On the other hand, relief that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect on the state treasury. See Milliken v. Bradley, 433 U.S. 267, 289-290, 97 S.Ct. 2749, 2761-2762, 53 L.Ed.2d 745 (1977); Edelman, supra 415 U.S., at 667-668, 94 S.Ct., at 1357-1358.Papasan, 478 U.S. at 278, 106 S.Ct. at 2940.
Applying the foregoing principles, the Eighth, Third, and Sixth Circuit Courts of Appeals have held that compensatory damages in the form of lost future wages, or "front pay," is not recoverable in an official-capacity action brought pursuant to § 1983 because it serves to compensate a plaintiff for a past violation of federal law and it ordinarily must be paid from public funds in the state treasury. See Campbell v. Arkansas Dept. of Correction, 155 F.3d 950, 962 (8th Cir. 1998); Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 697 (3d Cir. 1996); Freeman v. Michigan Dept. of State, 808 F.2d 1174, 1179 (6th Cir. 1987).
In affirming the district court's decision that plaintiffs' claim for front pay was precluded by the Eleventh Amendment, the Blanciak court stated:
In the instant case, appellants characterize their § 1983 actions as equitable claims for prospective relief only, i.e., "front pay" damages, but that label is of no importance. This Court must look to the substance rather than the form of the relief requested to determine whether appellants' claims are barred by the Eleventh Amendment. (citation omitted)
. . .
We find appellants' § 1983 "front pay" claims to be neither prospective nor equitable as they have been presented to this court. Appellants' specific allegations target past conduct, and the "front pay" remedy is not intended to halt a present, continuing violation of federal law. Rather than vindicating federal rights by holding state officials accountable to the Constitution, we believe that "front pay" relief, under the circumstances of this case, would provide nothing more than compensatory damages which would have to be paid from the Commonwealth's coffers. Plaintiffs' request for "front pay" does not, therefore, fall within the boundaries of permissible relief defined by Ex Parte Young and we therefore affirm the district court's holding that these claims are barred by the Eleventh Amendment.Blanciak, 77 F.3d at 698.
In the present case, plaintiff's § 1983 claims for damages, including future lost wages and benefits, arise from O'Hare's and Moffett's past alleged unconstitutional conduct. Plaintiff has not specifically sought any specific injunctive relief nor has plaintiff alleged any continuing violations of federal law which could be addressed by injunctive relief. Instead, plaintiff's § 1983 claim for future lost wages and benefits is purely compensatory and is meant to redress plaintiff's termination and defendants' past conduct in participating in the decision to terminate her. Furthermore, such an award of compensatory damages would be paid directly out of the state treasury. See LSA-R.S. § 13:5108.1 (requiring the state to indemnify state officials for damages awarded for violations of federal civil rights); see Hudson v. City of New Orleans, 174 F.3d 677, 687 (5th Cir. 1999) (noting that a lawsuit against a state official acting in his official capacity is "really against the state" due to the Louisiana indemnification statute) (citing Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 188 (5th Cir. 1986)). Therefore, plaintiff's claim for a damages award that includes future lost wages and benefits is "retroactive" relief and, insofar as that claim is brought pursuant to § 1983 against the defendants in their official capacities, the claim is barred by the Eleventh Amendment. Accordingly, dismissal of plaintiff's § 1983 claims for monetary damages brought against O'Hare and Moffett in their official capacity is appropriate.
Plaintiff has sued the individual defendants in both their "personal" and "official" capacities. It is important to note that the existence of the Louisiana indemnification statute does not affect plaintiff's claims against the individual defendant's in their "personal" or "individual" capacities.
The Eleventh Amendment does not come into play in personal capacity suits, see Flowers v. Phelps, 964 F.2d 400, 401 n. 2 (5th Cir. 1992) (per curiam). and the existence of an indemnification statute promising to pay judgments when an officer is sued in the individual capacity does not extend the Eleventh Amendment's protections around the officer. See Flowers, 964 F.2d at 401 n. 2 (citing Downing v. Williams, 624 F.2d 612, 626 (5th Cir. 1980) ("Such an indemnity statute is only an agreement between the state and these individuals and cannot thereby be converted into an extension of Eleventh Amendment immunity by the state."), vacated on other grounds, 645 F.2d 1226 (5th Cir. 1981)).Hudson, 174 F.3d at 687 n. 7.
Finally, the Eleventh Amendment precludes a federal court from entertaining a claim against a state official acting in his or her official capacity for violations of state law regardless of whether the relief sought is prospective or retroactive. Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 106, 89 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984). However, federal courts are not precluded from exercising supplemental jurisdiction over state law claims brought against state officials strictly in their personal capacities. See Wilson v. UT Health Center, 973 F.2d 1263, 1271 (5th Cir. 1992); Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 187-88 (5th Cir. 1986). Therefore, plaintiff's state law claim for intentional infliction of emotion distress, insofar as it is brought against the defendants acting in their official capacities, is also barred by the Eleventh Amendment.
V. Motion to Dismiss Personal Capacity Claims on Qualified Immunity/Alternative Motion for More Definite Statement/Schultea Reply
A. The Qualified Immunity Doctrine
O'Hare and Moffett have moved to dismiss plaintiff's § 1983 claims brought against them in their personal capacities on the ground that they are entitled to qualified immunity. In Harlow v. Fitzgerald, the United States Supreme Court established that "government officials performing discretionary functions generally are shielded 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." 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (citation omitted). Because qualified immunity constitutes an immunity from a lawsuit, rather than a mere defense to liability, the defense is intended to give public officials immunity from disruptive and burdensome pretrial matters such as discovery. Id. Therefore, adjudication of qualified immunity claims should occur "'at the earliest possible state in litigation.'" Id. (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991). However, the Fifth Circuit has explained:
"[T]he legally relevant factors bearing upon the Harlow question will be different on summary judgment than on an earlier motion to dismiss." Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). At the earlier stage, "it is the defendant's conduct as alleged in the complaint that is scrutinized for 'objective legal reasonableness.'" Id. "On summary judgment, however, the plaintiff can no longer rest on the pleadings . . . and the court looks to the evidence before it (in the light most favorable to the plaintiff) when conducting the Harlow inquiry." Id.McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002).
A claim of qualified immunity requires this Court to engage in a well-established two-step inquiry. Sanchez v. Swyden, 139 F.3d 464, 466 (5th Cir. 1998); Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998):
First, we must determine whether a public official's conduct deprived a § 1983 plaintiff of a "clearly established" constitutional or statutory right. The constitutional right must be sufficiently clear to put a reasonable [public official] on notice that certain conduct violates that right. The Supreme Court has warned against vague or general assertions of constitutional rights and has required a § 1983 plaintiff to state with specificity the constitutional right that has been allegedly violated — otherwise, liability could be imposed in every case.
. . .
Second, a public official may successfully assert the defense of qualified immunity even though the official violates a person's civil rights, provided the official's conduct was objectively reasonable. Whether an official's conduct is objectively reasonable depends upon the circumstances confronting the official as well as clearly established law in effect at the time of the official's actions. The subjective intent of the public official is irrelevant, and the official's knowledge of the relevant law need not rise to the level of a constitutional scholar.Id. 139 F.3d at 466-67 (alteration supplied).
With respect to the first step of the analysis, O'Hare and Moffett concede that plaintiff has sufficiently alleged a violation of a clearly established First Amendment right, i.e., the right to report sexual abuse of students and employees and the right to report religious discrimination free from retaliation. However, the defendants contend that their conduct was not objectively unreasonable because (1) plaintiff's protected speech did not motivate them to terminate her; (2) as an employee at will, plaintiff had no expectation of continued employment; and (3) defendants possessed an unqualified right, with the consent of the Board, to eliminate the position of Dean of Students based upon organizational changes occurring at SLU.
B. Motion for a Schultea Reply or More Definite Statement
The Fifth Circuit has determined that when a plaintiff sues a public official pursuant to § 1983, a district court must insist on a "heightened pleading" by the plaintiff. Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999); Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996). First, a plaintiff must file "a short and plain statement of his complaint, a complaint that rests on more than conclusions alone." Id. (quoting Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995). Second, "the court may, in its discretion, insist that a plaintiff file a reply tailored to an answer pleading the defense of qualified immunity." Schultea, 47 F.3d at 1434. Defining the contours of the procedure in qualified immunity cases, the Fifth Circuit stated:
Vindicating the immunity doctrine will ordinarily require such a reply, and a district court's discretion not to do so is narrow indeed when greater detail might assist. The district court may ban discovery at this threshold pleading stage and may limit any necessary discovery to the defense of qualified immunity. The district court need not allow any discovery unless it finds that plaintiff has supported his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts. Even if such limited discovery is allowed, at its end, the court can again determine whether the case can proceed and consider any motions for summary judgment under Rule 56.Schultea, 47 F.3d at 1434. A reply to an assertion of qualified immunity must contain "allegations of fact focusing specifically on the conduct of the individual who caused the plaintiff's injury." Reyes, 168 F.3d at 161. Additionally, a reply to a defendant's assertion of qualified immunity must "fairly engage its allegations." Schultea, 47 F.3d at 1433.
Procedurally, the Schultea reply to a defendant's assertion of qualified immunity is grounded in Fed.R.Civ. 7, which allows a court to order a reply to an answer affirmatively pleading the defense of qualified immunity. Id. at 1433. In the instant case, defendants have not asserted the defense of qualified immunity in their answer (they have not filed an answer). However, in a First Amendment retaliation case, such as the instant case, the Supreme Court has stated, "[w]hen a plaintiff files a complaint against a public official alleging a claim that requires proof of wrongful motive, the trial court must exercise its discretion in a way that protects the substance of the qualified immunity defense." Crawford-El v. Britton, 523 U.S. 574, 597, 118 S.Ct. 1584, 1596, 140 L.Ed.2d 759 (1998). The Court continued by noting that a court may protect the qualified immunity defense not only by ordering a reply to an answer pursuant to Rule 7, but a court may also grant a motion for a more definite statement pursuant to Fed.R.Civ.P. 12(e). Granting such a motion ensures that a § 1983 plaintiff "put forward specific nonconclusory factual allegations that establish improper motive causing cognizable injury. . . ." Id. at 598, 118 S.Ct. at 1596-97.
As noted above, defendants concede that plaintiff has alleged a violation of a clearly established constitutional right. However, they assert that qualified immunity attaches because their conduct was objectively reasonable in light of clearly established law. Plaintiff's opposition wholly fails to address the defendants' assertion of qualified immunity. Moreover, although the court finds that the complaint is detailed in some respects, greater detail with respect to the facts giving rise to plaintiff's claims against each individual defendant would aid the Court in resolving defendant's motion to dismiss.
Although plaintiff argues at length that she is not required to meet a "heightened pleading" standard to survive defendant's motion to dismiss pursuant to Rule 8, she concedes that a Rule 12(e) motion for a more definite statement is a proper procedural device to rely upon to protect to substance of defendant's qualified immunity defense. Because plaintiff's First Amendment retaliation claim against O'Hare and Moffett requires proof that her termination was motivated by her protected speech, see Warnock v. Pecos County, 116 F.3d 776, 780 (5th Cir. 1997), this Court exercises its discretion to order plaintiff to file a more definite statement that puts forth factual allegations supporting her First Amendment retaliation claim with respect to defendants, O'Hare and Moffett, and that fairly addresses defendant's assertion of qualified immunity.
The Court notes that defendants' motion for a more definite statement is inartfully drafted. Nevertheless, plaintiff is simply incorrect that defendant has not moved the court to require plaintiff to file a more definite statement. See Rec. Doc. No. 8, at 18. Moreover, to the extent that plaintiff argues that the Schultea procedure has been abrogated by subsequent Supreme Court precedent containing general statements pertaining to pleading requirements of Rule 8, plaintiff misreads Schultea. The Schultea court made clear that, initially, the plaintiff need do no more than file a "short and plain statement of his complaint" in compliance with Rule 8. See id. at 1433. Moreover, a plaintiff is not required to fully anticipate the defense of qualified immunity in her complaint or risk dismissal pursuant to Rule 12. Id. at 1430. However, once a defendant raises the defense of qualified immunity, a district court should exercise its discretion in a way that protects the substance of the defense, whether by ordering a Rule 7 reply when qualified immunity has been affirmatively plead in the answer, id. at 1433, or by granting a motion for a more definite statement when, as here, qualified immunity has been raised as a defense to a First Amendment retaliation claim. See Crawford-El, 523 U.S. at 598, 118 S.Ct. at 1584. The fact that qualified immunity has not been specifically plead in an answer does not preclude this Court from employing Rule 12(e). As the Supreme Court has noted, a district court may employ Rule 12(e) to protect the substance of the qualified immunity defense "even if the official chooses not to plead the affirmative defense of qualified immunity." Id.
Accordingly, and for the above and foregoing reasons,
IT IS ORDERED that defendants' motion to dismiss the claims against SLU is DISMISSED as moot.
IT IS FURTHER ORDERED that defendants' motion to dismiss plaintiff's claims brought pursuant to 42 U.S.C. § 1983, for monetary damages against defendants, Dr. Brad O'Hara and Dr. Randy Moffett, in their official capacity, including claims for future wages and benefits, is GRANTED. IT IS FURTHER ORDERED that defendants' motion for a more definite statement is GRANTED. Plaintiff shall file a more definite statement no later than 30 days after entry of this Order. Upon receipt of plaintiff's statement filed pursuant to this Order, the Court will take under submission defendants' motion to dismiss plaintiff's § 1983 claims brought against defendants, Dr. Brad O'Hara and Dr. Randy Moffett, on the basis of qualified immunity.