DeWalt, Anthony v. Carter, Lamark

In the

United States Court of Appeals

For the Seventh Circuit

No. 98-2415

ANTHONY DEWALT,

Plaintiff-Appellant,

v.

LAMARK CARTER, CORRECTIONAL OFFICER YOUNG,

CAROL BIESTER, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 98 C 50059--Philip G. Reinhard, Judge.

Submitted July 14, 1999/*--Decided August 11, 2000

Before HARLINGTON WOOD, JR., COFFEY and RIPPLE, Circuit

Judges.

RIPPLE, Circuit Judge. Anthony DeWalt, an

Illinois prisoner proceeding pro se, seeks

compensatory and punitive damages under 42 U.S.C.

sec. 1983 against five individuals employed at

the Dixon Correctional Center ("Dixon") for

alleged violations of his First, Eighth, and

Fourteenth Amendment rights. Mr. DeWalt claims

that various defendants used racially insulting

and sexually explicit language when speaking to

him, engaged in a racially motivated and

retaliatory conspiracy to get him fired from his

prison job, retaliated against him in a variety

of other ways for filing a grievance against a

prison guard, used excessive force in illegally

punishing him, and ignored his complaints of

discrimination and retaliation. The district

court dismissed Mr. DeWalt’s complaint for

failure to state a claim. We affirm in part and

reverse in part.

I

BACKGROUND

Anthony DeWalt’s problems at Dixon began on

August 8, 1997, when Correctional Officer Young,

a prison guard, approached him while he was

working at his job cleaning the building that

houses the prison school./1 Officer Young made a

series of sexually suggestive and racially

derogatory comments to him regarding certain

female teachers at the prison school. Mr. DeWalt

filed a grievance against Officer Young based on

the incident. Mr. DeWalt’s decision to file the

grievance set off a wave of retaliation by the

defendants and other prison employees.

During the following week, Officer Young went to

Carol Biester, an administrator at the prison

school, and suggested to her that Mr. DeWalt was

trying to initiate an intimate relationship with

a teacher at the prison school. Ms. Biester, in

response, instructed Mr. DeWalt in an abrasive

and insulting manner not to enter the teacher’s

classroom.

Shortly thereafter, on August 14, Officer Young

ordered Mr. DeWalt to clean the teacher’s

classroom, and Mr. DeWalt did so. Officer Young,

however, submitted a disciplinary report charging

Mr. DeWalt with entering the classroom in

contravention of Ms. Biester’s orders. Based on

Officer Young’s disciplinary report, Ms. Biester

removed Mr. DeWalt from his job. Mr. DeWalt

challenged Officer Young’s disciplinary report

internally, but the prison’s Adjustment Committee

found Mr. DeWalt guilty of the disciplinary

violation on August 26, 1997. As a result, Mr.

DeWalt was permanently reassigned from his job at

the prison school.

At about the same time Mr. DeWalt lost his

prison job, Dan Murray, a prison administrator,

took him aside, informed him that he had heard

Officer Young’s allegations about Mr. DeWalt’s

interest in the teacher, and proceeded to berate

Mr. DeWalt in racially derogatory terms for

getting into trouble and for pursuing prison

teachers. Several weeks later, Mr. Murray refused

to reassign Mr. DeWalt to a new prison job,

despite the warden’s instructions to do so.

Over the next few weeks, Mr. DeWalt received two

more groundless disciplinary reports from other

prison staff members who are not defendants in

the present case. The prison guard who gave Mr.

DeWalt the second of these reports informed Mr.

DeWalt that Ms. Biester and Officer Young had

enlisted a number of prison staff members to give

Mr. DeWalt disciplinary reports whenever possible

because Mr. DeWalt had filed a grievance against

Officer Young.

Finally, in early November 1997, Correctional

Officer Smith, another prison guard, issued Mr.

DeWalt a disciplinary report. He informed Mr.

DeWalt that he was receiving the disciplinary

report because he had filed a grievance against

Officer Young and because correctional officers

"stick together." R.11. As Mr. DeWalt walked

away, he told Officer Smith that his actions were

unprofessional, whereupon Officer Smith jumped up

and shoved Mr. DeWalt toward the doorway and into

the door frame. Mr. DeWalt suffered bruising on

his back where he hit the door frame; the prison

medical staff, however, did not note any visible

injury and did not order X-rays.

Throughout this time period, Mr. DeWalt wrote

several letters to Dixon’s warden, Lamark Carter,

complaining about several of the incidents

described above. Mr. Carter offered Mr. DeWalt a

job in another part of the prison; however, it

appears that Mr. Carter took no other actions.

Liberally construed, see Hudson v. McHugh, 148

F.3d 859, 864 (7th Cir. 1998), Mr. DeWalt’s

complaint alleges the following claims: (1) that

Officer Young and Mr. Murray violated the Eighth

and Fourteenth Amendments by using racial

epithets and making racially derogatory and

sexually explicit statements when speaking to Mr.

DeWalt; (2) that Officer Young, acting alone and

in conspiracy with Ms. Biester, violated the

First and Fourteenth Amendments by taking various

actions to have Mr. DeWalt removed from his job

at the prison school because of his race and

because he had filed a grievance against Officer

Young; (3) that Officer Young, Ms. Biester, and

Officer Smith violated the First and Fourteenth

Amendments by retaliating against Mr. DeWalt for

complaining about Officer Young’s actions; (4)

that Officer Smith violated the Eighth Amendment

by using excessive force to impose illegal

punishment; (5) that Mr. Carter violated the

First, Eighth, and Fourteenth Amendments by

failing to remedy or prevent the allegedly

illegal actions taken by Officer Young, Ms.

Biester, and Mr. Murray; and (6) that Officer

Smith violated the Fourteenth Amendment by

fabricating disciplinary charges. The district

court, addressing some but not all these claims,

dismissed Mr. DeWalt’s complaint sua sponte in

its entirety under 28 U.S.C. sec.

1915(e)(2)(B)(ii) for failure to state a claim.

Mr. DeWalt now appeals./2

II

ANALYSIS

A. Standard of Review

This court has not yet identified the proper

standard of review for dismissals under 28 U.S.C.

sec. 1915(e)(2)(B)(ii), which provides that a

district court must dismiss the case of a

plaintiff proceeding in forma pauperis if the

action "fails to state a claim on which relief

may be granted." See Mathis v. New York Life Ins.

Co., 133 F.3d 546, 547 (7th Cir. 1998) (per

curiam) (noting that the question of the proper

standard of review is an open one in this

circuit). It is well-established, however, that

we review de novo dismissals for failure to state

a claim under Federal Rule of Civil Procedure

12(b)(6). We see no reason to treat dismissals

under sec. 1915(e)(2)(B)(ii) differently. Cf.

Sanders v. Sheahan, 198 F.3d 626, 626 (7th Cir.

1999) (reaching the same conclusion with respect

to dismissals for failure to state a claim under

28 U.S.C. sec. 1915A(b)(1)). Moreover, the

circuits that have addressed this issue agree

that de novo review is the proper standard of

review. See Perkins v. Kansas Dep’t of

Corrections, 165 F.3d 803, 806 (10th Cir. 1999);

Barren v. Harrington, 152 F.3d 1193, 1194 (9th

Cir. 1998) (per curiam), cert. denied, 525 U.S.

1154 (1999); McGore v. Wrigglesworth, 114 F.3d

601, 604 (6th Cir. 1997); Mitchell v. Farcass,

112 F.3d 1483, 1486 (11th Cir. 1997).

Accordingly, we conclude that dismissals under

sec. 1915(e) (2)(B)(ii) will be reviewed de novo

in the same manner as dismissals under Rule

12(b)(6).

In evaluating whether a plaintiff’s complaint

fails to state a claim, a court must take the

plaintiff’s factual allegations as true and draw

all reasonable inferences in his favor. See

Strasburger v. Board of Educ., 143 F.3d 351, 359

(7th Cir. 1998), cert. denied, 525 U.S. 1069

(1999). A complaint should be dismissed for

failure to state a claim only if "no relief could

be granted ’under any set of facts that could be

proved consistent with the allegations.’" Nance

v. Vieregge, 147 F.3d 589, 590 (7th Cir.)

(quoting Hishon v. King & Spalding, 467 U.S. 69,

73 (1984)), cert. denied, 525 U.S. 973 (1998).

Accordingly, a plaintiff need not plead

particular legal theories or particular facts in

order to state a claim. See Bennett v. Schmidt,

153 F.3d 516, 518-19 (7th Cir. 1998); Nance, 147

F.3d at 590. All that is required is "a short and

plain statement of the claim that will give the

defendant fair notice of what the plaintiff’s

claim is and the grounds upon which it rests."

Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit, 507 U.S. 163,

168 (1993) (citations and internal quotation

marks omitted); see Fed. R. Civ. P. 8(a)(2); Kyle

v. Morton High Sch., 144 F.3d 448, 454 (7th Cir.

1998).

B. Racist and Sexually Explicit

Statements

Although the district court did not address

specifically Mr. DeWalt’s allegations concerning

Officer Young’s and Mr. Murray’s use of sexually

explicit language, the district court did explain

its rejection of Mr. DeWalt’s claim regarding

their use of racially derogatory language. The

court reasoned that such language does not

deprive a person of any constitutionally

protected rights.

Precedent from this circuit as well as others

supports the district court’s conclusion. The use

of racially derogatory language, while

unprofessional and deplorable, does not violate

the Constitution. See Patton v. Przybylski, 822

F.2d 697, 700 (7th Cir. 1987); accord Williams v.

Bramer, 180 F.3d 699, 706 (5th Cir.), clarified

on rehearing, 186 F.3d 633 (5th Cir. 1999).

Standing alone, simple verbal harassment does not

constitute cruel and unusual punishment, deprive

a prisoner of a protected liberty interest or

deny a prisoner equal protection of the laws./3

See Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir.

1987) (per curiam) (Eighth Amendment); Patton,

822 F.2d at 700 (due process); Williams, 180 F.3d

at 705-06 (equal protection). See generally

Shabazz v. Cole, 69 F. Supp. 2d 177, 199-201 (D.

Mass. 1999) (collecting cases). Accordingly, Mr.

DeWalt’s claims that Officer Young and Mr. Murray

violated his Eighth and Fourteenth Amendment

rights by directing racially derogatory and

sexually explicit language at him were properly

dismissed.

C. Removal of Mr. DeWalt from his Job

The district court rejected Mr. DeWalt’s claim

concerning the loss of his job at the prison

school on two grounds. First, the court noted

that Illinois prisoners have no right to hold a

particular prison job, or any job at all for that

matter. It concluded, therefore, that Mr. DeWalt

could not base a sec. 1983 claim on the loss of

his prison job. Alternatively, the district court

held that Mr. DeWalt could not pursue a sec. 1983

damages claim based on the loss of his prison job

because Edwards v. Balisok, 520 U.S. 641 (1997),

precludes damages actions challenging

disciplinary sanctions that have not been

overturned through some other means.

1.

In ruling that Mr. DeWalt could not base a sec.

1983 claim on the loss of a job to which he had

no entitlement, the district court collapsed an

important distinction between procedural due

process claims and other sorts of constitutional

claims. To establish a procedural due process

violation, a prisoner must demonstrate that the

state deprived him of a liberty or property

interest created either by state law or the Due

Process Clause itself. See Sandin v. Conner, 515

U.S. 472, 483-84 (1995) (summarizing Supreme

Court precedent on procedural due process claims

by prisoners); Vitek v. Jones, 445 U.S. 480, 491-

94 (1980) (recognizing liberty interest arising

directly from Due Process Clause); Wolff v.

McDonnell, 418 U.S. 539, 555-57 (1974)

(recognizing that prisoners might enjoy

procedural due process protections and that state

law could create protected liberty interests);

Board of Regents v. Roth, 408 U.S. 564, 576-77

(1972) (discussing the property interest

requirement for procedural due process claims).

As the district court recognized, this court, in

Wallace v. Robinson, 940 F.2d 243 (7th Cir. 1991)

(en banc), determined that neither Illinois law

nor the Due Process Clause itself affords

prisoners a liberty or property interest in their

jobs. Accordingly, to the extent that Mr. DeWalt

alleges a procedural due process claim, the

district court was correct to dismiss the claim.

Mr. DeWalt alleges more than a procedural due

process claim, however. He also alleges a

Fourteenth Amendment equal protection claim and a

First Amendment retaliation claim, to which the

liberty/property interest requirement for

procedural due process claims does not apply. See

Sandin, 515 U.S. at 487 n.11; Higgason v. Farley,

83 F.3d 807, 810 (7th Cir. 1996) (per curiam).

For example, if prison officials were to allocate

T.V. time, visitation privileges, prison jobs, or

any of the other privileges prisoners enjoy, on

an otherwise illegal or discriminatory basis,

their actions would be unconstitutional even

though such privileges do not constitute liberty

or property interests. See, e.g., Babcock v.

White, 102 F.3d 267, 274-75 (7th Cir. 1996)

(retaliatory transfer); Black v. Lane, 824 F.2d

561, 562 (7th Cir. 1987) (racial discrimination

with respect to prison job); Bentley v. Beck, 625

F.2d 70, 70-71 (5th Cir. Unit B 1980) (per

curiam) (same). Accordingly, the fact that Mr.

DeWalt does not have a liberty or property

interest in his former prison job does not

foreclose his equal protection and retaliation

claims arising from the loss of that job.

2.

Thus, we are faced squarely with the issue

whether Mr. DeWalt may bring his sec. 1983 action

(based on his equal protection and retaliation

claims) when the underlying disciplinary sanction

has not been overturned or invalidated. Today, we

join the Second Circuit and hold that a prisoner

may bring a sec. 1983 claim "challenging the

conditions of [his] confinement where [he] is

unable to challenge the conditions through a

petition for federal habeas corpus." Jenkins v.

Haubert, 179 F.3d 19, 21 (2d Cir. 1999).

a. Statutory framework

Because Mr. DeWalt’s claim involves both sec.

1983 and the federal habeas statute, we begin our

analysis by looking at both statutes. Section

1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in any action at law, suit in

equity, or other proper proceeding for redress .

. . .

42 U.S.C. sec. 1983. By its terms, sec. 1983 does

not require a plaintiff to exhaust state remedies

before bringing a cause of action. This

requirement, however, was imposed statutorily for

prisoners in 1996, when Congress enacted the

Prison Litigation Reform Act ("PLRA"). That Act

prohibits a prisoner from bringing a sec. 1983

action "until such administrative remedies as are

available are exhausted." 42 U.S.C. sec.

1997e(a).

The federal habeas statute, 28 U.S.C. sec. 2254,

provides an avenue to challenge unconstitutional

confinement by state authorities. It states in

relevant part:

(a) The Supreme Court, a Justice thereof, a

circuit judge, or a district court shall

entertain an application for a writ of habeas

corpus in behalf of a person in custody pursuant

to the judgment of a State court only on the

ground that he is in custody in violation of the

Constitution or laws or treaties of the United

States.

(b)(1) An application for a writ of habeas

corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be

granted unless it appears that--

(A) the applicant has exhausted the remedies

available in the courts of the State; or

(B)(i) there is an absence of available State

corrective process; or

(ii) circumstances exist that render such

process ineffective to protect the rights of the

applicant.

28 U.S.C. sec. 2254.

A tension between these two statutes arises when

a prisoner, one "in custody," challenges an

aspect of his confinement not through the tool of

habeas corpus, but through a sec. 1983 action,

either for injunctive relief or damages. Because

the statutes do not address their overlap and

resulting conflict, the task of discerning

congressional intent has fallen on the courts. We

turn now to that case law.

b. Supreme Court case law

The Supreme Court first considered whether sec.

1983 could be used to bring actions relating to a

plaintiff’s conviction or sentence in Preiser v.

Rodriguez, 411 U.S. 475 (1973). In Preiser,

several prisoners sought injunctive relief under

sec. 1983 to have restored good time credits that

they had lost as a result of a prison

disciplinary action. The Court concluded that

sec. 1983 could not be used to pursue such relief

because Congress had designated the federal

habeas statute as the exclusive federal remedy

for state prisoners who challenge the fact or

duration of their confinement and seek immediate

or speedier release. See id. at 489-90.

"Congress," it stated, "has determined that

habeas corpus is the appropriate remedy for state

prisoners attacking the validity of the fact or

length of their confinement, and that specific

determination must override the general terms of

sec. 1983." Id. at 490. The Court also clarified

when sec. 1983 relief would be available to

prisoners: "[A] sec. 1983 action is a proper

remedy for a state prisoner who is making a

constitutional challenge to the conditions of his

prison life, but not to the fact or length of his

custody." Id. at 499.

Just over twenty years later, in Heck v.

Humphrey, 512 U.S. 477 (1994), the Supreme Court

took up a question left unanswered by Preiser:

whether a plaintiff may bring a sec. 1983 claim

for damages that challenges the underlying

conviction or sentence. The Court analogized such

claims to malicious prosecution actions and

opined that a sec. 1983 action should not be

available to challenge a conviction or sentence

unless the conviction or sentence already has

been invalidated. See id. at 484-87. Accordingly,

the Court held:

[I]n order to recover damages for allegedly

unconstitutional conviction or imprisonment, or

for other harm caused by actions whose

unlawfulness would render a conviction or

sentence invalid, a sec. 1983 plaintiff must

prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal

authorized to make such determination, or called

into question by a federal court’s issuance of a

writ of habeas corpus, 28 U.S.C. sec. 2254. A

claim for damages bearing that relationship to a

conviction or sentence that has not been so

invalidated is not cognizable under sec. 1983.

Id. at 486-87 (footnote omitted).

In his concurring opinion, Justice Souter noted

the difficulty presented by such a broad reading

of Heck. However, he concluded that the Court’s

opinion could be read "as saying nothing more

than that now, after enactment of the habeas

statute and because of it, prison inmates seeking

sec. 1983 damages in federal court for

unconstitutional conviction or confinement must

satisfy a requirement analogous to the malicious-

prosecution tort’s favorable-termination

requirement." 512 U.S. at 500. "That," continued

Justice Souter,

would be a sensible way to read the opinion, in

part because the alternative would needlessly

place at risk the rights of those outside the

intersection of sec. 1983 and the habeas statute,

individuals not "in custody" for habeas purposes.

If these individuals . . . were required to show

the prior invalidation of their convictions or

sentences in order to obtain sec. 1983 damages

for unconstitutional conviction or imprisonment,

the result would be to deny any federal forum for

claiming a deprivation of federal rights to those

who cannot first obtain a favorable state ruling.

The reason, of course, is that individuals not

"in custody" cannot invoke federal habeas

jurisdiction, the only statutory mechanism

besides sec. 1983 by which individuals may sue

state officials in federal court for violating

federal rights. That would be an untoward result.

Id./4

Edwards v. Balisok, 520 U.S. 641 (1997),

extended the Heck rule to sec. 1983 damages

claims challenging the loss of good time credits

in prison disciplinary actions (when the fact or

duration of confinement was implicated). Making

no distinction between claims challenging a

conviction or sentence and claims challenging

prison disciplinary decisions, the Court

concluded that a state prisoner’s claim for

damages based on allegations that necessarily

implied the invalidity of the punishment imposed

(i.e., loss of good time credits) was not

cognizable under sec. 1983 because the prison

disciplinary decision had not been invalidated.

See id. at 648.

Spencer v. Kemna, 523 U.S. 1 (1998), is the

Supreme Court’s most recent pronouncement in this

arena. In that case, the Court ruled that the

expiration of a habeas petitioner’s sentence

rendered moot a challenge to the revocation of

his parole since the action no longer presented

an Article III case or controversy. Concerned

with the fact that, as a consequence of the

Court’s ruling, the petitioner may have lacked a

remedy for any unconstitutional actions taken in

revoking his parole, the concurring and

dissenting Justices in Spencer took the

opportunity to clarify their positions regarding

the scope of the Heck rule. Justice Souter,

joined by Justices O’Connor, Ginsburg, and

Breyer, wrote: "The better view, then, is that a

former prisoner, no longer ’in custody,’ may

bring a sec. 1983 action establishing the

unconstitutionality of a conviction or

confinement without being bound to satisfy a

favorable-termination requirement that it would

be impossible as a matter of law for him to

satisfy." Id. at 990 (Souter, J., concurring).

Justice Ginsburg reiterated her agreement in her

separate concurrence: "I have come to agree with

Justice Souter’s reasoning: Individuals without

recourse to the habeas statute because they are

not ’in custody’ (people merely fined or whose

sentences have been fully served, for example)

fit within sec. 1983’s ’broad reach.’" Id.

(Ginsburg, J., concurring). Justice Stevens also

accepted Justice Souter’s position: "Given the

Court’s holding that petitioner does not have a

remedy under the habeas statute, it is perfectly

clear, as Justice Souter explains, that he may

bring an action under sec. 1983." Id. at 992 n.8

(Stevens, J., dissenting).

c. Court of Appeals case law

In Jenkins v. Haubert, 179 F.3d. 19 (2d Cir.

1999), the Second Circuit faced the task of

applying Preiser and its progeny to a prisoner’s

challenge to conditions of his confinement, but

not its fact or duration. The prisoner in Jenkins

claimed violations of his constitutional rights

with respect to prison disciplinary hearings. As

a result of the hearings, Jenkins was sentenced

to thirty days "keeplock," a type of

administrative detention in which the prisoner is

confined to his cell. Jenkins then filed a sec.

1983 action challenging his hearings. The

district court held that Jenkins’ sec. 1983

action was not cognizable under the Supreme

Court’s decision in Edwards because the

disciplinary penalty had not been overturned. The

Second Circuit reversed. After carefully

reviewing both the statutes and the Supreme Court

case law, the Second Circuit concluded that

"nothing in Supreme Court precedent requires that

the Heck rule be applied to a challenge by a

prisoner to a term of disciplinary segregation.

Moreover, we find that to apply the Heck rule in

such circumstances would contravene the

pronouncement of five Justices that some federal

remedy--either habeas corpus or sec. 1983-- must

be available." Id. at 27.

d. Application

We believe the Second Circuit appropriately

reconciled the statutory schemes and therefore

adopt the reasoning of the Second Circuit as it

applies to Mr. DeWalt’s claims regarding his

conditions of confinement. First, we agree that

the Supreme Court never has addressed whether

Heck’s favorable-termination requirement bars a

prisoner’s challenge under sec. 1983 to an

administrative sanction that does not affect the

length of confinement. In Preiser, the Court

clearly limited its holding to actions involving

the "heart" of habeas--the fact or duration of

imprisonment. The Court in Heck characterized the

case as lying at "the intersection" of sec. 2254

and sec. 1983, and held that "[e]ven a prisoner

who has fully exhausted available state remedies"

could not bring a cause of action under sec. 1983

"unless . . . the conviction or sentence is . . .

invalidated . . . by the grant of a writ of

habeas corpus." Id. at 489. The court in Edwards

simply extended Heck to administrative

proceedings that affect the length of confinement

and, therefore, for which habeas is available.

Finally, Spencer speaks only to the effect of

subsequent release on a habeas petition; the

discussion of sec. 1983 is limited to dictum and

the concurring opinions. The Court simply never

has "announced that the Heck rule bars a

prisoner’s challenge under sec. 1983 to an

administrative or disciplinary sanction that does

not affect the overall length of confinement."

Jenkins, 179 F.3d at 27.

Furthermore, we, like the Second Circuit in

Jenkins, are hesitant to apply the Heck rule in

such a way as would contravene the pronouncement

of five sitting Justices. See id. The concurring

and dissenting opinions in Spencer reveal that

five justices now hold the view that a sec. 1983

action must be available to challenge

constitutional wrongs where federal habeas is not

available. Although this perspective originally

had been a minority view, it is not after

Spencer. Justice Ginsburg has "come to agree with

Justice Souter’s reasoning: Individuals without

recourse to the habeas statute because they are

not ’in custody’ (people merely fined or whose

sentences have been fully served, for example)

fit within sec. 1983’s ’broad reach.’" Spencer,

523 U.S. at 21 (Ginsburg, J., concurring)./5

In the absence of binding Supreme Court

precedent, and in light of the guidance offered

by the concurrences in Heck and Spencer, we turn

to Mr. DeWalt’s claims. Unlike the plaintiffs in

Preiser, Heck, and Edwards, Mr. DeWalt’s case

does not "lie at the intersection" of sections

2254 and 1983. Mr. DeWalt does not challenge the

fact or duration of his confinement, but only a

condition of his confinement--the loss of his

prison job. Consequently, under our precedent,

Mr. DeWalt may not pursue a habeas action. See

Pischke v. Litsher, 178 F.3d 497, 500 (7th Cir.)

(holding that habeas is the proper vehicle for

presenting a claim "if but only if the prisoner

is seeking to ’get out’ of custody in some

meaningful sense"), cert. denied, 120 S. Ct. 380

(1999); Graham v. Broglin, 922 F.2d 379, 381 (7th

Cir. 1991) (stating that if a prisoner is

challenging "merely the conditions of his

confinement his proper remedy is under the civil

rights law"). Because federal habeas relief is

not available to Mr. DeWalt, the language of sec.

1983 and the Court’s decision in Preiser dictate

that he be able to proceed on his sec. 1983

action. In Preiser, the Court held that the more

specific federal habeas statute must necessarily

supersede the more general sec. 1983 statute to

effectuate "explicit congressional intent." 411

U.S. at 489; see also Heck, 512 U.S. at 497-98

(Souter, J., concurring). In this case, where

habeas is not applicable, the requirements of the

habeas statute do not supersede the explicit

right to proceed under sec. 1983. Consequently,

Mr. DeWalt may proceed with his sec. 1983 action

without first seeking to invalidate the state

court action through habeas.

We are aware that our decisions in Anderson v.

County of Montgomery, 111 F.3d 494 (7th Cir.

1997), and Stone-Bey v. Barnes, 120 F.3d 718 (7th

Cir. 1997), precluded plaintiffs from pursuing

sec. 1983 actions when federal habeas was not

available or when the prisoner had not first

availed himself of that option. However, we note

that both of these cases preceded Spencer.

Indeed, our more recent cases have questioned the

viability of Anderson and Stone-Bey in light of

the Justices’ reluctance to apply the Heck rule

to situations in which habeas relief is not

available. See Hoard v. Reddy, 175 F.3d 531, 533

(7th Cir.) ("[T]here is probably an exception to

the rule of Heck for cases in which no route

other than a damages action under section 1983 is

open to the person to challenge his

conviction."), cert. denied, 120 S. Ct. 411

(1999); Carr v. O’Leary, 167 F.3d 1124, 1127 (7th

Cir. 1999) ("With Carr unable to get the

disciplinary sanction reversed, five Justices

would not consider the sanction a bar to a

section 1983 suit even though that suit calls

into question the validity of the sanction.");

Sylvester v. Hanks, 140 F.3d 713, 714 (7th Cir.

1998) (questioning whether Heck would preclude a

sec. 1983 action to review placement in

segregation given that "few states afford

collateral review of prison disciplinary

hearings"). Our decision today necessitates that

we overrule Anderson and Stone-Bey to the extent

they take the contrary position./6

To summarize, we hold today that the

unavailability of federal habeas relief does not

preclude a prisoner from bringing a sec. 1983

action to challenge a condition of his

confinement that results from a prison

disciplinary action.

3.

Having determined that a dismissal is not

justified on either of the grounds the district

court gave for dismissing Mr. DeWalt’s claims

regarding the loss of his prison job, we turn to

whether Mr. DeWalt’s allegations state a claim on

which relief can be granted. As noted above, Mr.

DeWalt alleges that Officer Young, with help from

Ms. Biester, worked to remove him from his prison

job because of his race and because he filed a

grievance against Officer Young.

We consider Mr. DeWalt’s allegations of racial

discrimination first. Unless it is narrowly

tailored to serve a compelling state interest,

racial discrimination by state actors violates

the Equal Protection Clause of the Fourteenth

Amendment. See City of Richmond v. J.A. Croson

Co., 488 U.S. 469, 493-94 (1989). A plaintiff

asserting an equal protection violation must

establish that a state actor has treated him

differently than persons of a different race and

that the state actor did so purposefully. See

Washington v. Davis, 426 U.S. 229, 239-42 (1976);

Indianapolis Minority Contractors Ass’n, Inc. v.

Wiley, 187 F.3d 743, 752 (7th Cir. 1999).

Although his complaint is less than pellucid,

Mr. DeWalt certainly alleges that he was

discriminated against because of his race, and

nothing in his complaint negates the possibility

that he could establish an equal protection

violation. We conclude that Mr. DeWalt’s

allegation that he was removed from his job

because of his race states a claim on which

relief can be granted.

We come to the same conclusion with regard to

Mr. DeWalt’s allegations of retaliation. An act

taken in retaliation for the exercise of a

constitutionally protected right violates the

Constitution. See Mt. Healthy City Sch. Dist. Bd.

of Educ. v. Doyle, 429 U.S. 274, 283-84 (1977);

Matzker v. Herr, 748 F.2d 1142, 1150 (7th Cir.

1984), limited on other grounds, Salazar v. City

of Chicago, 940 F.2d 233, 240-41 (7th Cir. 1991).

Prisoners have a constitutional right of access

to the courts that, by necessity, includes the

right to pursue the administrative remedies that

must be exhausted before a prisoner can seek

relief in court. See Preiser, 411 U.S. at 493.

Thus, a prison official may not retaliate against

a prisoner because that prisoner filed a

grievance. See Babcock, 102 F.3d at 274-75;

Black, 22 F.3d at 1402-03; see also Higgason, 83

F.3d at 810 (retaliation for filing lawsuit);

Murphy v. Lane, 833 F.2d 106, 108-09 (7th Cir.

1987) (per curiam) (same). This is so even if the

adverse action does not independently violate the

Constitution. See Babcock, 102 F.3d at 275. "To

state a cause of action for retaliatory

treatment, a complaint need only allege a

chronology of events from which retaliation may

be inferred." Black, 22 F.3d at 1399 (citations

and internal quotation marks omitted).

The allegations made in Mr. DeWalt’s complaint

certainly present a chronology from which

retaliation can be inferred. According to Mr.

DeWalt, it was only shortly after he filed a

grievance against Officer Young that Officer

Young and Ms. Biester acted to have him removed

from his prison job. Moreover, Mr. DeWalt can

point to statements by two other prison staff

members admitting that there was a concerted

effort by certain prison staff, including Officer

Young and Ms. Biester, to retaliate against Mr.

DeWalt. Thus, we conclude that Mr. DeWalt’s

allegation that he was removed from his job in

retaliation for filing a grievance states a claim

on which relief can be granted.

D. Retaliation Against Mr. DeWalt for

Reporting Misconduct

Mr. DeWalt also alleges that Officer Young, Ms.

Biester, and Officer Smith took various other

actions (filing false disciplinary reports,

encouraging others to do the same, attempting to

have Mr. DeWalt transferred to another prison) in

retaliation for his filing of a grievance against

Officer Young. The district court, however, did

not specifically consider these allegations. Our

review of the allegations persuades us that Mr.

DeWalt has stated sufficiently a claim for

retaliation.

Again, Mr. DeWalt’s allegations adequately set

forth a chronology of events from which

retaliation may be inferred. See Black, 22 F.3d

at 1399. To begin with, the alleged retaliatory

actions began almost immediately after Mr. DeWalt

filed the grievance against Officer Young,

suggesting a causal relationship. Likewise, Mr.

DeWalt’s claim that a prison guard informed him

that several staff members, including Officer

Young and Ms. Biester, were plotting to report

him for disciplinary violations whenever possible

also supports his claim. The same is true of Mr.

DeWalt’s allegation that, on several occasions in

the weeks and months after he filed the grievance

against Officer Young, he received unjustified

disciplinary reports from other staff members,

culminating in the incident involving Officer

Smith in November. That incident, too, suggests

Mr. DeWalt was the subject of retaliation in that

Officer Smith allegedly told Mr. DeWalt that he

was giving him a disciplinary report precisely

because Mr. DeWalt had filed a grievance against

Officer Young. Accordingly, we conclude that it

would be improper to dismiss Mr. DeWalt’s

retaliation claims for failure to state a claim.

E. Officer Smith’s Use of Force

The district court dismissed Mr. DeWalt’s

excessive force claim because Mr. DeWalt’s

complaint did not establish that Officer Smith’s

use of force (shoving Mr. DeWalt into a door

frame) was motivated by something other than a

good faith effort to maintain or restore

discipline. Accordingly, the court reasoned, Mr.

DeWalt had failed to show that the force Officer

Smith employed was excessive. We agree that Mr.

DeWalt’s excessive force claim must be dismissed,

though for slightly different reasons than those

articulated by the district court.

The Cruel and Unusual Punishments Clause of the

Eighth Amendment prohibits the "unnecessary and

wanton infliction of pain" on prisoners. See

Hudson v. McMillian, 503 U.S. 1, 5 (1992);

Estelle v. Gamble, 429 U.S. 97, 102-03 (1976).

What constitutes an "unnecessary and wanton

infliction of pain," however, "varies according

to the nature of the alleged constitutional

violation." Hudson, 503 U.S. at 5. In excessive

force cases, "the core judicial inquiry" is

"whether force was applied in a good-faith effort

to maintain or restore discipline, or maliciously

and sadistically to cause harm." Id. at 6-7. A

court should examine a variety of factors in

conducting this inquiry, including the need for

an application of force, the relationship between

that need and the force applied, the threat

reasonably perceived by the responsible officers,

the efforts made to temper the severity of the

force employed, and the extent of the injury

suffered by the prisoner. See id. at 7. With

regard to the last of these factors, while

significant injury is not required, a claim

ordinarily cannot be predicated upon a de minimis

use of physical force. See id. at 9-10. Thus, not

every push or shove by a prison guard violates a

prisoner’s constitutional rights. See id. at 9

(citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d

Cir. 1973)).

Officer Smith’s simple act of shoving Mr. DeWalt

qualifies as the kind of de minimis use of force

that does not constitute cruel and unusual

punishment. Compare Lunsford v. Bennett, 17 F.3d

1574, 1582 (7th Cir. 1994) (pouring a bucket of

water on prisoner and causing the bucket to hit

him in the head characterized as de minimis),

with Thomas v. Stalter, 20 F.3d 298, 301-02 (7th

Cir. 1994) (punching a prisoner with a closed

fist, while held down by other officers,

qualified as more than de minimis). The shove was

a single and isolated act, unaccompanied by

further uses of force. Moreover, the bruising Mr.

DeWalt allegedly suffered does not appear to have

been particularly serious. Although we certainly

do not condone the unjustified use of force by

prison guards, Mr. DeWalt’s allegations regarding

Officer Smith’s use of force against him fall

short of what is required to state a claim for

excessive force under the Eighth Amendment.

Accordingly, the district court did not err in

dismissing Mr. DeWalt’s excessive force claim.

F. Warden Lamark Carter

The district court did not specifically address

Mr. DeWalt’s claim against Mr. Carter, but it is

clear that his claim against Mr. Carter was

properly dismissed. Mr. DeWalt’s claim, that Mr.

Carter failed to remedy or prevent the illegal

actions taken by Officer Young, Ms. Biester, and

Mr. Murray, is, at bottom, a claim that Mr.

Carter failed to protect Mr. DeWalt from, and

therefore condoned, the discrimination and

retaliation he allegedly experienced. See Gentry

v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995);

see also Bohen v. City of East Chicago, Ind., 799

F.2d 1180, 1189-92 (7th Cir. 1986) (Posner, J.,

concurring)./7

To succeed on his claims, Mr. DeWalt must prove

that Mr. Carter acted intentionally, or at least

with deliberate indifference. See Babcock, 102

F.3d at 275; Nabozny, 92 F.3d at 453-54. In his

complaint, however, Mr. DeWalt specifically

alleges that Mr. Carter acted negligently.

Negligence, even gross negligence, does not rise

to the level of deliberate indifference, see

Nabozny, 92 F.3d at 454, and therefore does not

satisfy the state of mind requirement for either

of the constitutional violations Mr. DeWalt

alleges. Cf. Farmer v. Brennan, 511 U.S. 825,

833-38 (1994) (discussing deliberate indifference

in the Eighth Amendment context). In fact, an

allegation of negligence is inconsistent with the

claims Mr. DeWalt pursues and will support a

dismissal for failure to state a claim. Cf.

Antonelli v. Sheahan, 81 F.3d 1422, 1429 (7th

Cir. 1996). Accordingly, because Mr. DeWalt

alleges Mr. Carter acted negligently, Mr.

DeWalt’s claim against Mr. Carter was properly

dismissed./8

Conclusion

For the foregoing reasons, we affirm in part and

reverse and remand in part the judgment of the

district court.

AFFIRMED in part, REVERSED and REMANDED in part

/* After an examination of the briefs and the

record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the

briefs and the record. See Fed. R. App. P.

34(a)(2). Only the appellant has filed a brief

because this court previously had granted a

motion for an order of non-involvement based upon

lack of service in the trial court. The

defendants-appellees further declined our

invitation to submit a brief.

/1 The facts here and throughout the opinion are

taken from Mr. DeWalt’s complaint and materials

attached to it. We accept them as true and

construe them in the light most favorable to Mr.

DeWalt. See Hentosh v. Herman M. Finch Univ. of

Health Sciences/ The Chicago Med. Sch., 167 F.3d

1170, 1173 (7th Cir. 1999).

/2 Mr. DeWalt has abandoned his claim that Officer

Smith fabricated a disciplinary report because he

failed to address it in his appellate brief. See

Duncan v. State of Wisconsin Dep’t of Health &

Family Servs., 166 F.3d 930, 934 (7th Cir. 1999).

We also decline to review an Eighth Amendment

claim Mr. DeWalt raises for the first time on

appeal regarding the alleged failure of Officer

Smith and another officer to provide him with

medical care after Officer Smith shoved him. See

Weigel v. Target Stores, 122 F.3d 461, 464 (7th

Cir. 1997).

/3 This does not mean, however, that the use of

racially derogatory language is without legal

significance. Such language is strong evidence of

racial animus, an essential element of any equal

protection claim. See Williams, 180 F.3d at 706;

Bell v. City of Milwaukee, 746 F.2d 1205, 1259

(7th Cir. 1984). Thus, although the use of

racially derogatory language, by itself, does not

violate the Constitution, it can be quite

important evidence of a constitutional violation.

/4 Justice Scalia responded to Justice Souter by

stating that "the principle barring collateral

attacks--a longstanding and deeply rooted feature

of both the common law and our own jurisprudence-

-is not rendered inapplicable by the fortuity

that a convicted criminal is no longer

incarcerated." Id. at 490 n.10. However, "the

fortuity" of release was not at issue in Heck.

/5 We note that the Supreme Court has expressly

disapproved of the practice of relying on

statements in separate opinions to determine

whether a case has been overruled. See Agostini

v. Felton, 521 U.S. 203, 217 (1997); cf. State

Oil v. Khan, 522 U.S. 3, 20 (approving this

court’s decision not to treat a case as overruled

despite the weakening of its foundation). Here,

however, we rely on separate opinions not to

overrule precedent, but to help guide us in

deciding an open question.

/6 This opinion has been circulated to all judges in

active service under the provisions of Circuit

Rule 40(e). No judge in active service favored a

rehearing en banc.

/7 Mr. DeWalt’s claim encompasses two distinct

constitutional violations. On the one hand, to

the extent Mr. Carter failed to protect Mr.

DeWalt from discrimination, Mr. DeWalt’s claim is

an equal protection claim requiring him to show

that Mr. Carter purposefully discriminated

against him based on his membership in a

definable class, namely, based on his race. See

Indianapolis Minority Contractors, 187 F.3d at

752; Nabozny v. Podlesny, 92 F.3d 446, 453-54

(7th Cir. 1996). On the other hand, to the extent

Mr. Carter failed to protect Mr. DeWalt from

retaliation, Mr. DeWalt’s claim is a retaliation

claim requiring him to prove that Mr. Carter

purposefully retaliated against him because he

exercised a constitutionally protected right,

namely, because he filed grievances complaining

of his mistreatment. See Mt. Healthy, 429 U.S. at

287; Babcock, 102 F.3d at 275.

/8 Mr. DeWalt also suggests that Mr. Carter failed

to remedy or protect him from certain Eighth

Amendment violations by Officer Young, Ms.

Biester, and Mr. Murray. Because Mr. DeWalt

cannot state an Eighth Amendment claim against

any of these defendants, however, we will not

address this possible claim. In any event, such a

claim would fail for the same reason his other

claims against Mr. Carter fail. See Farmer, 511

U.S. at 833-38 (negligence insufficient to state

Eighth Amendment claim).