In Cooney v. Rossiter, No. 08-3675 (7th Cir. Sep. 30, 2009), a woman who lost custody of her children sued everybody under Section 1983 - including private parties. Private parties may be sued under Section 1983 when the private parties' conduct may be fairly attributable to the state - such as when a private party conspires with a state actor. Given Ashcroft v. Iqbal, what pleading standard should apply? Judge Richard Posner writes that
the height of the pleading requirement is relative to circumstances. We have noted the circumstances (complexity and immunity) that raised the bar in the two Supreme Court cases. This case is not a complex litigation, and the two remaining defendantsdo not claim any immunity. But it may be paranoid pro se litigation, arising out of a bitter custody fight and alleging, as it does, a vast, encompassing conspiracy; and before defendants in such a case become entangled in discovery proceedings, the plaintiff must meet a high standard of plausibility.
Even before the Supreme Court’s new pleading rule, as we noted, conspiracy allegations were often held to a higher standard than other allegations; mere suspicion that persons adverse to the plaintiff had joined a conspiracy against him or her was not enough. The complaint in this case, though otherwise detailed, is bereft of any suggestion, beyond a bare conclusion, that the remaining defendants were leagued in a conspiracy with the dismissed defendants. It is not enough (and would not have been even before Bell Atlantic and Iqbal) that the complaint charges that “Bischoff and Dr. Lyle Rossiter, with the aid of Judge Nordquist, Dan Cain, and Brian Klaung continued the ongoing violations of Plaintiff, Deborah’s Constitutional rights.” That is too vague.Slip op. at *6-7. The case is thus dismissed - as it should have been.
Pro se Section 1983 suits are justifiably suspect. Pro se lawsuits alleging violations of the right to familiar association are the stuff of legend. Often people lose custody of their children because of mental health issues. Imagine, then, how an already ill person takes the news of losing custody.
It is unfair to force innocent civil defendants to serve as pro se litigant's whipping boy. A court of law is not a psychotherapist's office.