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., 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.
