In the
United States Court of Appeals
For the Seventh Circuit

No. 98-2998

TERRY C. JOHNSON,

Plaintiff-Appellant,

v.

DEBBIE STOVALL,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 4340--Milton I. Shadur, Judge.

Argued July 12, 2000--Decided November 30, 2000




  Before RIPPLE, ROVNER, and WILLIAMS, Circuit Judges.

  WILLIAMS, Circuit Judge. Mr. Terry Johnson, an
Illinois state prisoner, filed this suit pro se
under 42 U.S.C. sec. 1983 alleging that various
prison employees violated his Eighth and
Fourteenth Amendment rights. He also claimed that
Debbie Stovall, a nurse at the prison where he
was incarcerated, filed false disciplinary
reports and injury reports against him in
retaliation for Johnson’s filing a grievance
against her and for complaining about her to
other medical staff. Before the defendants were
served, the district court dismissed the case as
frivolous pursuant to 42 U.S.C. sec. 1997e(c)(1).
Johnson, with the assistance of appointed
counsel, now appeals only the dismissal of his
retaliation claim against Nurse Stovall. We
reverse and remand.

  In July 1998, Johnson, who was at the time
incarcerated at Stateville Correctional Center,
filed this suit against Stovall as well as
Illinois Department of Corrections (IDOC)
Director Odie Washington, Stateville Warden
George DeTella, and various members of IDOC’s
Adjustment Committee. The complaint states that
Johnson received over twenty disciplinary
reports, which resulted in placement in
segregation, a security grade increase, and the
loss of good time credits. Johnson contended that
in administering these disciplinary reports, the
putative defendants, minus Stovall, violated the
Due Process Clause of the Fourteenth Amendment,
Illinois state law, and IDOC regulations. With
regard to Stovall, Johnson alleged that she filed
false disciplinary charges and injury reports
against him in retaliation for his filing a
grievance against her and complaining about her
to other medical staff. Additionally, Johnson
claimed that Stovall denied him his tuberculosis
medication, presumably in violation of the Eighth
Amendment. In support of his complaint, Johnson
attached the disciplinary reports that prison
employees (including Stovall) had filed against
him and the Adjustment Committee’s decisions on
these reports. He also attached the results of a
polygraph examination, in which the examiner
concluded that Johnson was not being truthful
with respect to an assault and battery he
allegedly committed on Stovall.

  Before the defendants were served with process,
the district court sua sponte dismissed as
frivolous pursuant to sec. 1997e(c)(1) the
retaliation claim against Stovall, and dismissed
all of the other claims against Stovall and the
other named defendants (without citing the
specific statutory basis for doing so). In
dismissing the retaliation claim against Stovall,
the district court considered all of the
disciplinary reports that were attached to
Johnson’s complaint--including those reports from
prison employees besides Stovall--and found that
they "portray [Johnson] as a major troublemaker
capable of threats and (even worse) dangerous
actions." Furthermore, the court pointed to one
of Stovall’s disciplinary charges against Johnson
that alleged he had struck her hand and then
burned her hand with a cigarette. The district
court then stated that "that charge was supported
not only by the testimony of another correctional
officer who witnessed the incident but also by a
polygraph examination that found Johnson had
answered deceptively." Finally, the district
court concluded that its "review of the entire
package of disciplinary reports and related
materials that Johnson has himself annexed to his
Complaint leaves it with the firm conviction that
Johnson’s current Complaint of misconduct on
[Stovall’s] part fits [the description of a
frivolous or malicious claim]."
  Johnson timely filed a motion for
reconsideration, requesting that the district
court grant him leave to amend his complaint. The
district court denied leave to amend, reasoning
that "[t]his is not a situation in which a pro se
litigant has submitted an incomplete or
inarticulate (or even incoherent) complaint, so
as to call for giving the litigant a second
opportunity to reframe the allegations before it
would be fair to consider dismissal." Johnson
then filed this appeal, challenging only the
dismissal of his retaliation claim against
Stovall and not his other claims against Stovall
or any of the other prison employees and
officials named in the complaint. This court
granted the named defendants an order of non-
involvement on appeal, and later invited the non-
involved parties to file a brief that would
address "the standard governing dismissals
pursuant to 42 U.S.C. sec. 1997e(c)(1)." The
Illinois Attorney General submitted a brief that
limits its discussion to the standard of review
but does not address the merits of the dismissal.

  This court has yet to address the standard of
review of dismissals for frivolousness under sec.
1997e(c)(1). See Sanders v. Sheahan, 198 F.3d
626, 626 (7th Cir. 1999). We need not decide this
question now, however, because under either a de
novo or an abuse of discretion standard of
review, the district court erred in dismissing
Johnson’s retaliation claim as frivolous. The
Supreme Court in Neitzke v. Williams, 490 U.S.
319, 325 (1989), held that a "frivolous"
complaint is one that "lacks an arguable basis
either in law or in fact." In Denton v.
Hernandez, 504 U.S. 25, 33 (1992), the Court
further defined the standard for factual
frivolousness, holding that "a finding of factual
frivolousness is appropriate when the facts
alleged rise to the level of the irrational or
the wholly incredible." The Denton Court
explained that a "complaint may not be dismissed
. . . simply because the court finds the
plaintiff’s allegations unlikely." Id. Moreover,
under the abuse of discretion standard outlined
in Denton, this court may examine "whether the
plaintiff was proceeding pro se; whether the
court inappropriately resolved genuine issues of
disputed fact; whether the court applied
erroneous legal conclusions; whether the court
provided a statement of reasons explaining the
dismissal; and whether the dismissal was with or
without prejudice." Alston v. DeBruyn, 13 F.3d
1036, 1039 (7th Cir. 1994) (citing Denton, 504
U.S. at 34).

  We believe that the district court contravened
Denton by erroneously resolving genuine issues of
fact against Johnson and dismissing his
retaliation claim based on the supposed
unlikeliness of the allegations. To state a cause
of action for retaliation, "a complaint need only
allege a chronology of events from which
retaliation may be inferred." Black v. Lane, 22
F.3d 1395, 1399 (7th Cir. 1994) (citations and
internal quotations omitted). Johnson’s complaint
alleged that Stovall filed false disciplinary
charges against him after he filed a grievance
against her and complained about her to other
medical staff. From these pleaded facts, it is
possible to infer that Stovall filed false
charges of injury against Johnson in retaliation
for his grievance and complaints. Yet when the
district court dismissed Johnson’s claim against
Stovall, it concluded that the disciplinary
reports attached to the complaint showed that
Johnson was a "major troublemaker capable of
threats and (even worse) dangerous actions." The
court also stated that Stovall’s disciplinary
charge against Johnson alleging that he struck
and burned her hand with a cigarette was
supported by a witness and by a polygraph test
regarding the incident. Although the district
court’s assessment of the credibility of
Johnson’s claims may prove to be correct, the
district court is resolving a genuine issue of
fact, i.e., whether Johnson did or did not harm
Stovall. Even under the abuse of discretion
standard outlined in Denton, 504 U.S. at 34,
however, the district court may not
"inappropriately resolve[ ] genuine issues of
disputed fact," and the court in this case has
done so.

  Furthermore, Johnson’s claims of retaliation are
not "clearly baseless" or "fanciful, fantastic,
delusional, irrational, or wholly incredible."
Hutchinson v. Spink, 126 F.3d 895, 899 (7th Cir.
1997) (citation and internal quotations omitted).
The district court gave three reasons for not
believing Johnson’s allegations: (1) he was a
"major troublemaker;" (2) another prison employee
allegedly witnessed the alleged battery and
assault against Stovall; and (3) the results of
the polygraph examination. The evidence cited by
the district court may decrease the likelihood
that the disciplinary reports Stovall filed
against Johnson are false, but the documents do
not demonstrate that his retaliation claim is
"wholly incredible." Id. As the Supreme Court
remarked in Denton, "[s]ome improbable
allegations might properly be disposed of on
summary judgment, but to dismiss them as
frivolous without any factual development is to
disregard the age-old insight that many
allegations might be ’strange but true; for truth
is always strange, stranger than fiction.’" 504
U.S. at 33 (quoting Lord Byron, "Don Juan," canto
XIV, stanza 101) (T. Steffan, E. Steffan & W.
Pratt eds. 1977). Johnson’s claim of retaliation
does seem unlikely. Nonetheless, because the
retaliation claim does not meet the definition of
factual frivolousness outlined in Denton, we
reverse the case and remand it for further
proceedings.

REVERSED AND REMANDED
