Walker, Tony v. Thompson, Tommy

Court Case Details
Court Case Opinion

In the

United States Court of Appeals

For the Seventh Circuit

No. 01-2361

Tony Walker,



Tommy G. Thompson, et al.,


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


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.


/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., Swierkiewicz, 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.

Referenced Cases

  1. Buchanan, Jasper N. v. Manley, Audrey
  2. Swin Resource Systems, Inc. v. Lycoming County
  3. In Re: Orthopedic Bone Screw Products Liability Litigation Legal Committee, at 98-1829
  4. Orion Tire Corporation v. Goodyear Tire & Rubber Company
  5. Ervin T. Valandingham, Jr. v. S.G. Bojorquez
  6. 95 Cal. Daily Op. Serv. 6644 v. Frank Hall
  7. Moore v. McDonald
  8. Tanya Marsh v. Johnnie W. Jones, Jr., Warden
  9. In Re Temporomandibular v. The Dow Chemical Company
  10. Owen Orthmann v. Apple River Campground, Inc.
  11. Anthony McCoy v. James R. Gilbert
  12. Muriel D. Black v. Michael P. Lane
  13. Timothy T. Ryan v. Mary Immaculate Queen Center
  14. George Jones v. City of Chicago
  15. Michael Kunik v. Racine County v. Racine County v. Racine County
  16. William K. Zimmerman v. Margarita Tribble
  17. Tandy Richardson v. The City of Indianapolis
  18. Anthony Dewalt v. Lamark Carter
  19. Martha M. Dieu v. Ralph P. Norton
  20. Alexander Patton v. Raymond Przybylski
  21. American Inter-Fidelity Exchange v. American Re-Insurance Company
  22. Alice Scott v. City of Chicago
  23. John C. Babcock v. R.L. White and G. McDaniel
  24. Judy Kratville v. Marvin T. Runyon
  25. Charles E. Brownlee v. William Conine v. Sheriff Raymond Klink
  26. Harry N. Zemsky v. The City of New York
  27. John Doe v. Paul Pfrommer
  28. Second Amendment Foundation v. United States Conference of Mayors
  29. Sam Polur v. Hyman Raffe
  30. Pedro Pino v. Patrick Ryan
  31. Mark B. Pangburn v. James Culbertson
  32. Steven Bruce Dwares v. The City of New York
  33. Seth Yellen v. Thomas I. Cooper
  34. Harper v. Jenkin
  35. Leon Wildberger v. Sgt. David Bracknell
  36. Leatherman v. Tarrant County Narcotics Intelligence
  37. Beck v. Prupis
  38. O'Sullivan v. Boerckel
  39. Conley v. Gibson
  40. Swierkiewicz v. Sorema NA
  41. W. Martin Haskell, M.D. v. Washington Township Walter A. Buchanan
  42. Earl White v. Kenneth McGinnis Director
  43. 26 Fair empl. prac. cas. 450 v. The County of Oakland the Oakland County Board of Auditors Daniel Key Murphy
  44. Leroy H. Johnson, Jr. v. Alex Rodriguez, Etc.
  45. Ghulam Mohammed Nasim v. Warden