Walker, Tony v. Thompson, Tommy ( 2002 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 01-2361
    Tony Walker,
    Plaintiff-Appellant,
    v.
    Tommy G. Thompson, et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Western District of Wisconsin.
    No. 00-C-350-C--Barbara B. Crabb, Chief Judge.
    Submitted March 26, 2002--Decided May 1, 2002
    Before Posner, Easterbrook, and Ripple,
    Circuit Judges.
    Posner, Circuit Judge. This is a suit
    under 42 U.S.C. sec. 1983 by a Wisconsin
    state prisoner against prison officials
    and a former governor of the state,
    charging a variety of violations of the
    plaintiff’s federal rights, only three of
    which need detain us: that the defendants
    conspired to keep him and other prisoners
    in prison beyond their mandatory release
    date; that the defendant prison officials
    retaliated against him for using the law
    library; and that they also retaliated
    against him for filing grievances
    complaining about prison conditions.
    The district judge dismissed the suit
    for failure to state a claim. She based
    dismissal of the first of the plaintiff’s
    charges on alternative grounds: that the
    complaint failed to allege an overt act,
    and that a federal suit complaining of
    the duration of a prisoner’s confinement
    must be brought under the habeas corpus
    statute. The second ground is of course
    solid, but the first is not. As the
    Supreme Court has recently reaffirmed,
    Swierkiewicz v. Sorema N.A., 
    122 S. Ct. 992
    , 995 (2002), and we have held time
    and again, most recently in Higgs v.
    Carver, No. 01-1559, 
    2002 WL 481227
    at *2
    (7th Cir. Apr. 1, 2002), and Beanstalk
    Group, Inc. v. AM General Corp., No. 01-
    2164, 
    2002 WL 406985
    , at *6 (7th Cir.
    March 15, 2002), there is no requirement
    in federal suits of pleading the facts or
    the elements of a claim, with the
    exceptions (inapplicable to this case)
    listed in Rule 9. Hence it is enough in
    pleading a conspiracy merely to indicate
    the parties, general purpose, and
    approximate date, so that the defendant
    has notice of what he is charged with. We
    did hold in Ryan v. Mary Immaculate Queen
    Center, 
    188 F.3d 857
    , 859-60 (7th Cir.
    1999), that the complaint in that case
    had failed to allege a critical term of
    the conspiracy charged there, but the
    case was unusual. The conspiracy alleged
    in that case, so far as it relates to
    this case, was a conspiracy by a sheriff
    and three of his deputies to violate the
    plaintiff’s Fourth Amendment rights by
    conducting an unreasonable search of his
    premises. One of the deputies had not
    participated in the search, and the
    complaint did not so much as hint at
    what role he might have played or agreed
    to play in relation to the search. To put
    this differently, there was no indication
    of the nature of his agreement with the
    other defendants. As to him, there was
    only a bare allegation of conspiracy--not
    enough to enable him to prepare his
    defense or for the district court to
    determine whether the claim was within
    the ballpark of possibly valid conspiracy
    claims, the two functions that Ryan
    assigns to notice pleading under the
    federal civil rules.
    Nothing in the reasoning or result in
    Ryan compels a conclusion that the
    plaintiff in a conspiracy case must plead
    the overt act that--because without an
    overt act there is no injury from a
    conspiracy and hence no tort, Beck v.
    Prupis, 
    529 U.S. 494
    , 501-05 (2000);
    Jones v. City of Chicago, 
    856 F.2d 985
    ,
    992 (7th Cir. 1988); In re Orthopedic
    Bone Screw Products Liability Litigation,
    
    193 F.3d 781
    , 789 (3d Cir. 1999), "the
    function of [civil] conspiracy doctrine
    [being] merely to yoke particular
    individuals to the specific torts charged
    in the complaint," Jones v. City of
    
    Chicago, supra
    , 856 F.2d at 992)--is
    required to make a conspiracy civilly
    actionable. Richardson v. City of
    Indianapolis, 
    658 F.2d 494
    , 500 (7th Cir.
    1981); Second Amendment Foundation v.
    United States Conference of Mayors, 
    274 F.3d 521
    , 524 (D.C. Cir. 2001); In re
    Temporomandibular Joint (TMJ) Implants
    Products Liability Litigation, 
    113 F.3d 1484
    , 1498 (8th Cir. 1997); Restatement
    (Second) of Torts, sec. 876(a) and
    comment b. Cases such as Pangburn v.
    Culbertson, 
    200 F.3d 65
    , 72 (2d Cir.
    1999); Dwares v. City of New York, 
    985 F.2d 94
    , 99-100 (2d Cir. 1993); Polur v.
    Raffe, 
    912 F.2d 52
    , 56 (2d Cir. 1990),
    and Zemsky v. City of New York, 
    821 F.2d 148
    , 151 (2d Cir. 1987) (and our own
    Kunik v. Racine County, 
    946 F.2d 1574
    ,
    1580 (7th Cir. 1991), and Dieu v. Norton,
    
    411 F.2d 761
    , 763 (7th Cir. 1969)), which
    say that "conclusory allegations" of
    conspiracy, or allegations that fail to
    mention an overt act, are not enough to
    withstand a motion to dismiss cannot be
    squared with either Swierkiewicz or our
    recent decisions; we note that in
    Swierkiewicz the Supreme Court was
    reversing the Second Circuit--the author
    of the principal cases that require
    allegation of the overt act.
    Of course, if it became apparent in the
    course of the litigation that there was
    no overt act, the plaintiff’s suit would
    have to be dismissed; but a failure of
    proof is not a failure to state a claim.
    The plaintiff attached to his brief in
    this court a document claiming that there
    was indeed an overt act, namely a refusal
    to release him when his prison term
    expired. The document had not been
    submitted to the district court, but that
    is of no moment, in view of another rule
    repeatedly reaffirmed by this court--that
    an appellant complaining about the
    dismissal of his suit for failure to
    state a claim may hypothesize any set of
    facts consistent with the complaint that
    show that the complaint states a claim.
    American Inter-Fidelity Exchange v.
    American Re-Insurance Co., 
    17 F.3d 1018
    ,
    1021-22 (7th Cir. 1994); Orthmann v.
    Apple River Campground, Inc., 
    757 F.2d 909
    , 914-15 (7th Cir. 1985); Orion Tire
    Corp. v. Goodyear Tire & Rubber Co., 
    268 F.3d 1133
    , 1137-38 (9th Cir. 2001); cf.
    Swin Resource Systems, Inc. v. Lycoming
    County, 
    883 F.2d 245
    , 247 (3d Cir. 1989).
    Regarding the claim that the defendants
    retaliated against the plaintiff for
    using the law library by refusing to let
    him exercise outside his cell, the
    district judge interpreted the plaintiff
    to be complaining merely about being
    forced to choose between use of the
    library and exercise. Anyone who has
    alternative uses for the same block of
    time is "forced" to choose between them.
    But the complaint alleges more--that the
    plaintiff was denied out-of-cell exercise
    because he had exercised his
    constitutional right to seek access to
    the courts, and while this could just
    mean that he forewent exercise because he
    wanted to allocate more time to the
    library, he could be charging that the
    defendants took away from him time that
    he could otherwise have spent exercising
    without giving up library time. We might
    nevertheless have affirmed the dismissal
    of this charge under a line of cases that
    required a plaintiff to allege "a
    chronology of events from which
    retaliation may plausibly be inferred,"
    Zimmerman v. Tribble, 
    226 F.3d 568
    , 573
    (7th Cir. 2000); DeWalt v. Carter, 
    224 F.3d 607
    , 618 (7th Cir. 2000); Black v.
    Lane, 
    22 F.3d 1395
    , 1399 (7th Cir. 1994),
    but that would again raise the specter of
    fact pleading now firmly interred by our
    recent decision in Higgs v. 
    Carver, supra
    , at *2. After Higgs, there is no
    such pleading requirement.
    The district judge also had alternative
    grounds for dismissing the plaintiff’s
    claim of retaliation for filing
    grievances about prison conditions:
    failure to exhaust administrative
    remedies within the deadline provided by
    state law; and, again, failure to state a
    claim. The difference in grounds is
    potentially consequential. Dismissal for
    failure to exhaust is without prejudice
    and so does not bar the reinstatement of
    the suit unless it is too late to
    exhaust, Pozo v. McCaughtry, No. 01-3623,
    
    2002 WL 596190
    (7th Cir. Apr. 18, 2002);
    McCoy v. Gilbert, 
    270 F.3d 503
    , 508 (7th
    Cir. 2001); Marsh v. Jones, 
    53 F.3d 707
    ,
    710 (5th Cir. 1995); see also Harper v.
    Jenkin, 
    179 F.3d 1311
    (11th Cir. 1999)
    (per curiam); cf. O’Sullivan v. Boerckel,
    
    526 U.S. 838
    , 848 (1999), as otherwise "a
    prisoner could evade the exhaustion
    requirement by filing no administrative
    grievance or by intentionally filing an
    untimely one." Marsh v. 
    Jones, supra
    , 53
    F.3d at 710); see, e.g., White v.
    McGinnis, 
    131 F.3d 593
    (6th Cir. 1997)
    (per curiam). In contrast, dismissal of a
    suit for failure to state a claim is
    always with prejudice and so always
    precludes reinstatement.
    The judge’s basis for holding that the
    plaintiff had failed to state a claim
    was, this time, not a defect in pleading,
    but that the plaintiff had failed to file
    his grievances on the forms provided for
    that purpose by the prison. But it is one
    thing to refuse to accept an improperly
    filed grievance and another to retaliate
    against the grievant (by, he alleges,
    instituting disciplinary proceedings
    against him). If the grievance is
    constitutionally protected speech, which
    on this record we must assume the
    plaintiff’s grievances were (they might
    be protected by the speech or petition
    clauses of the First Amendment, Bradley
    v. Hall, 
    64 F.3d 1276
    , 1279 (9th Cir.
    1995); Wildberger v. Bracknell, 
    869 F.2d 1467
    , 1468 (11th Cir. 1989) (per curiam);
    see also Babcock v. White, 
    102 F.3d 267
    ,
    274-75 (7th Cir. 1996), and by the right
    of access to the courts, DeWalt v.
    
    Carter, supra
    , 224 F.3d at 618; Bradley
    v. 
    Hall, supra
    , 64 F.3d at 1279;
    Valandingham v. Bojorquez, 
    866 F.2d 1135
    ,
    1138 (9th Cir. 1989), as well), then
    retaliation for the submission of them
    was unconstitutional.
    With regard to the alternative ground,
    the judge said that the plaintiff had
    failed to file a timely grievance. She
    may have been correct, but the record is
    hopelessly unclear on whether he did fail
    to file a timely grievance and, if so,
    whether any administrative remedy
    nevertheless remained open to him.
    Failure to exhaust administrative
    remedies is an affirmative defense,
    Massey v. Helman, 
    196 F.3d 727
    , 735 (7th
    Cir. 1999), which the defendants, not
    having filed an answer, have not even
    pleaded. It is true that when the
    existence of a valid affirmative defense
    is so plain from the face of the
    complaint that the suit can be regarded
    as frivolous, the district judge need not
    wait for an answer before dismissing the
    suit. E.g., Brownlee v. Conine, 
    957 F.2d 353
    , 354 (7th Cir. 1992); Pino v. Ryan,
    
    49 F.3d 51
    (2d Cir. 1995), and cases
    cited there; Nasim v. Warden, 
    64 F.3d 951
    , 955-56 (4th Cir. 1995) (en banc);
    Moore v. McDonald, 
    30 F.3d 616
    , 620 (5th
    Cir. 1994); Johnson v. Rodriguez, 
    943 F.2d 104
    , 107-08 (1st Cir. 1991); Yellen
    v. Cooper, 
    828 F.2d 1471
    , 1476 (10th Cir.
    1987); Pierce v. County of Oakland, 
    652 F.2d 671
    (6th Cir. 1981) (per curiam).
    And so although immunity is an
    affirmative defense, 28 U.S.C. sec.
    1915(e)(2)(B)(iii) directs the district
    court to dismiss a prisoner’s pro se suit
    "at any time" if the defendant is immune.
    The principle is not limited to prisoner
    pro se cases. It is a general principle
    of federal civil procedure. See Kratville
    v. Runyon, 
    90 F.3d 195
    , 198 (7th Cir.
    1996); Doe v. Pfrommer, 
    148 F.3d 73
    , 80
    (2d Cir. 1998); In re Medomak Canning,
    
    922 F.2d 895
    , 904 (1st Cir. 1990);
    Costlow v. Weeks, 
    790 F.2d 1486
    (9th Cir.
    1986). Appropriate caution in its
    exercise is assured by the requirement
    that the validity of the defense be both
    apparent from the complaint itself,
    Haskell v. Washington Township, 
    864 F.2d 1266
    , 1273 n. 3 (6th Cir. 1988), and
    unmistakable, so that the suit is fairly
    describable as frivolous. Thus a
    personal-injury suit filed 100 years
    after the date of the injury as stated in
    the complaint would be frivolous, even
    though expiration of the time within
    which to sue is an affirmative defense.
    That the defendant might through
    inadvertence fail to plead the bar of the
    statute of limitations would not make the
    case any the less frivolous; no doubt
    some frivolous suits go through to
    judgment because of the incompetence of
    the defendant or his lawyer. Occasionally
    the court may make a mistake when all it
    has before it is the complaint, but, if
    so, the mistake can be corrected on
    appeal. Buchanan v. Manley, 
    145 F.3d 386
    ,
    387-88 (D.C. Cir. 1998) (per curiam).
    In this case, however, unaided by an
    answer, the judge when she ruled did not
    have enough information to enable her to
    determine whether the plaintiff had
    exhausted his administrative remedies.
    The judgment of the district court is
    affirmed in part and reversed in part and
    the case remanded for further proceedings
    consistent with this opinion.
    RIPPLE, Circuit Judge, concurring. I am
    in complete agreement with my colleagues
    that there are no special pleading
    requirements for civil rights matters.
    The Supreme Court made that proposition
    clear in Leatherman v. Tarrant County
    Narcotics Intelligence and Coordination
    Unit, 
    507 U.S. 163
    (1993), and again
    recently in Swierkiewicz v. Sorema N.A.,
    ___ U.S. ___, 
    122 S. Ct. 992
    , 998 (2002)
    (noting this general rule in a discussion
    concerning pleading requirements under
    Title VII). These cases have worked a sea
    change in our circuit’s earlier
    jurisprudence. Cf. Patton v. Przybylski,
    
    822 F.2d 697
    (7th Cir. 1987).
    As my colleagues note, to satisfy the
    mandate of Federal Rule of Civil
    Procedure 8(a)(2), a pleading merely must
    contain "a short and plain statement of
    the claim showing that the pleader is
    entitled to relief." Fed. R. Civ. P.
    8(a)(2). Except in a limited set of
    cases,/1 this notice pleading regime
    eschews any requirement that "a claimant
    [ ] set out in detail the facts upon
    which he bases his claim." 
    Leatherman, 507 U.S. at 168
    (quoting Conley v.
    Gibson, 
    355 U.S. 41
    , 47 (1957)). Indeed,
    a complaint need not reference every ele
    ment of a legal theory to satisfy Rule
    8(a)(2)’s requirements. See Scott v. City
    of Chicago, 
    195 F.3d 950
    , 951 (7th Cir.
    1999). To the contrary, through his
    pleading, a party simply must provide the
    "defendant fair notice of what the
    plaintiff’s claim is and the grounds upon
    which it rests." 
    Leatherman, 507 U.S. at 168
    (quoting Conley v. Gibson, 
    355 U.S. 41
    , 47 (1957)). Accordingly, so long as
    the pleading contains facts sufficient to
    permit the district court and defendant
    "to understand the gravamen of the
    plaintiff’s complaint," 
    Scott, 195 F.3d at 951
    , it satisfies notice pleading
    requirements./2
    In the wake of Swierkiewicz, this court
    has emphasized that there are no special
    pleading requirements in prisoners’ civil
    rights cases. See Higgs v. Carver, No.
    01-1559, 
    2002 WL 481227
    , at *2 (7th Cir.
    2002). In Higgs, the district court
    dismissed a prisoner’s claims of
    retaliation because the complaint failed
    to allege a chronology of events from
    which retaliation could be inferred. This
    court reversed, noting that "[a]ll that
    need be specified is the bare minimum
    facts necessary to put the defendant on
    notice of the claim so he can file an
    answer." 
    Id. The plaintiff
    had not
    asserted a bald claim of retaliation,
    failing to identify the suit and act
    comprising the retaliatory activity. See
    
    id. Rather, he
    had identified both the
    suit and the retaliatory act, providing
    the defendant with adequate notice of his
    claims thereby satisfying the pleading
    requirements of Rule 8(a)(2). See 
    id. In Higgs,
    we rejected a district court’s
    insistence on the allegation of a
    "chronology of events" because that
    requirement, as understood and applied by
    the district court in that case, was at
    odds with the "plain statement" standard
    of pleading required by the rules.
    Indeed, in many, perhaps most, cases,
    requiring the pleading of a chronology of
    events will be at odds with the liberal
    notice pleading requirements of Rule
    8(a)(2). Plaintiffs, including prisoners,
    need not articulate detailed facts in
    order to state a claim for retaliation. A
    litany of particularized facts might be
    appropriate if the purpose of the
    complaint were to establish the
    plausibility of the plaintiff’s
    allegations. But, as my colleagues note,
    the complaint is simply not designed to
    perform that function.
    Having stated my agreement with the
    general proposition expressed in today’s
    opinion, I must also note that it would
    be an overstatement to assert that the
    pleading of a chronology of facts is, in
    all cases, symptomatic of adherence to a
    heightened pleading standard. As some of
    our cases make clear,/3 this
    formulation is not always an attempt to
    impose a heightened pleading requirement.
    Rather, a chronology of events
    formulation simply can serve as a
    shorthand for the proposition that, to
    provide a defendant and the court with
    adequate notice of the nature of the
    pending claims, a prisoner must allege
    more than the simple legal conclusion of
    retaliation. Indeed, a chronology of
    events is often the most expeditious way
    for a plaintiff to provide a defendant
    with adequate notice of the nature of the
    plaintiff’s claims. As Higgs implicitly
    recognized, a plaintiff alleging
    retaliation must reference, at a minimum,
    the suit or grievance spawning the
    retaliation and the acts constituting
    retaliatory conduct. Higgs, 
    2002 WL 481227
    , at *2. Absent these allegations,
    a defendant would not know how to respond
    to the complaint.
    In short, in the context of a
    retaliation allegation, the obligation of
    adequate notice to the defendant is
    sometimes most easily accomplished by the
    statement of the essential events that
    constitute the retaliation. This
    situation arises especially when the
    alleged retaliation constitutes a series
    of acts, inconsequential in themselves,
    that in the aggregate constitute
    actionable retaliatory conduct.
    FOOTNOTES
    /1 Rule 9(b) enumerates these exceptions. See Swier-
    
    kiewicz, 122 S. Ct. at 998
    ; 
    Leatherman, 507 U.S. at 168
    . In particular, a party must plead with
    particularity the facts constituting fraud or
    mistake. See Fed. R. Civ. P. 9(b). The Supreme
    Court has expressed reluctance to expand the
    particularity requirement beyond those cases
    enumerated in Rule 9(b). See 
    Leatherman, 507 U.S. at 168
    (noting the maxim expressio unius est
    exclusio alterius).
    /2 Indeed, courts often reference Form 9 of the
    Federal Rules of Civil Procedure Forms as an
    exemplar of the notice pleading requirements.
    See, e.g., Swier
    kiewicz, 122 S. Ct. at 998
    n.4.
    Form 9, which sets forth a claim for negligence,
    states: "On June 1, 1936, in a public highway
    called Boylston Street in Boston, Massachusetts,
    defendant negligently drove a motor vehicle
    against plaintiff who was then crossing said
    highway." This short statement suffices under
    Rule 8(a)(2).
    /3 In Black v. Lane, 
    22 F.3d 1395
    (7th Cir. 1994),
    we emphasized, in the context of a retaliation
    claim, that "a heightened pleading rule does not
    apply to sec. 1983 claims" and that the prison-
    er’s complaint need only conform "with the liber-
    al system of notice pleading" set forth in Rule
    8. 
    Id. at 1399.
    By alleging the acts of harass-
    ment and beatings he allegedly had suffered, the
    plaintiff had fulfilled his obligation of notice.
    In Zimmerman v. Tribble, 
    226 F.3d 568
    (7th Cir.
    2000), the court reversed the dismissal of Zim-
    merman’s complaint for retaliation because the
    plaintiff, by alleging a short chronology of the
    events constituting the alleged retaliation had
    not merely asserted a "legal conclusion of retal-
    iation." 
    Id. at 573.
    Rather, the plaintiff stated
    sufficient facts--the simple allegation that he
    had been denied access to the library after he
    filed a grievance against a prison official--to
    survive dismissal. Indeed, the court noted that
    "[a]lthough we would wish for more detail, we
    find that the chronology alleges the bare minimum
    necessary." Id.
    

Document Info

Docket Number: 01-2361

Judges: Per Curiam

Filed Date: 5/1/2002

Precedential Status: Precedential

Modified Date: 9/24/2015

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