The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4686
WILLIE SIMPSON,
Plaintiff-Appellant,
v.
JANEL NICKEL, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05-C-232-C—Barbara B. Crabb, Chief Judge.
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SUBMITTED MAY 25, 2006—DECIDED JUNE 12, 2006
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Before EASTERBROOK, WOOD, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Willie Simpson contends
that, after he wrote a letter (and filed a suit) complaining
about abuse by the staff of the prison where he is con-
fined, the targets of his accusations retaliated by issuing
bogus conduct reports and arranging for him to be disci-
plined: Simpson spent 300 days in segregation and lost 25
days’ recreation privileges. Penalizing a prisoner’s exercise
of the constitutional right to petition for redress of griev-
ances is a constitutional tort. See Hoskins v. Lenear, 395
F.3d 372, 375 (7th Cir. 2005); Black v. Lane, 22 F.3d 1395,
1402-03 (7th Cir. 1994). Yet the district court dismissed
Simpson’s complaint for failure to state a claim on which
relief may be granted. See Fed. R. Civ. P. 12(b)(6). 2005
2 No. 05-4686
U.S. Dist. LEXIS 26182 (W.D. Wis. Oct. 31, 2005), reconsid-
eration denied, 2005 U.S. Dist. LEXIS 29405 (Nov. 23, 2005).
The judge wrote that the complaint was deficient because
Simpson had failed to set out all “elements” of a retaliation
claim—foremost among them that his original allegations
against the staff had been truthful, for there is no constitu-
tional right to lie. See McDonald v. Smith, 472 U.S. 479,
484-85 (1985). According to the district court, a prisoner
must not only allege but also “establish” or “demonstrate”
in the complaint that the original speech was truthful.
Simpson could not do this, the judge wrote, because the
prison’s disciplinary board had found the speech to be false,
and Simpson is bound by that finding unless a state court
sets it aside. See Edwards v. Balisok, 520 U.S. 641 (1997);
Heck v. Humphrey, 512 U.S. 477 (1994). Because Wiscon-
sin’s judiciary offers only the opportunity to seek certiorari
in prison disciplinary matters, however, Simpson has no
means to obtain the plenary review that the district judge
thought essential to his claim. See State ex rel. L’Minggio v.
Gamble, 2003 WI 82, 263 Wis. 2d 55, 667 N.W.2d 1; State ex
rel. Curtis v. Litscher, 2002 WI App. 172, 256 Wis. 2d 787,
650 N.W.2d 43; see also Wis. Stat. §§ 801.02(7)(b),
893.735(2).
This treatment went wrong at the first step: the belief
that complaints must lay out facts corresponding to every
“element” of a legal theory. That is a code-pleading ap-
proach, which the Federal Rules of Civil Procedure reject.
One pleads “claims” (which is to say, grievances) rather
than legal theories and factual specifics. See, e.g., McDon-
ald v. Household International, Inc., 425 F.3d 424, 427-28
(7th Cir. 2005); Bartholet v. Reishauer A.G. (Zürich), 953
F.2d 1073, 1077-78 (7th Cir. 1992). The Supreme Court
drove the point home in Swierkiewicz v. Sorema N.A., 534
U.S. 506 (2002), holding that plaintiffs need not allege
either the factual or legal “elements” of a prima facie case
under the employment-discrimination laws. That conclusion
No. 05-4686 3
is equally applicable to every other federal claim. It is why
“[a]ny district judge (for that matter, any defendant)
tempted to write ‘this complaint is deficient because it does
not contain. . .’ should stop and think: What rule of law
requires a complaint to contain that allegation?” Doe v.
Smith, 429 F.3d 706, 708 (7th Cir. 2005) (emphasis in
original). It is also why “[a]ny decision declaring ‘this
complaint is deficient because it does not allege X’ is a
candidate for summary reversal, unless X is on the list in
Fed. R. Civ. P. 9(b).” Kolupa v. Roselle Park District, 438
F.3d 713, 715 (7th Cir. 2006). The truth of a prisoner’s prior
statements is not among the matters that must be pleaded
with particularity, and a complaint therefore may not be
dismissed for omission of this allegation. Simpson’s griev-
ance was set out clearly enough to put the defendants on
notice; no more is required.
What is more, an obligation to allege some matter in a
complaint does not entail an obligation to “establish” that
issue at the pleading stage; support of one’s allegations
comes later, in response to a motion for summary judgment
or at trial. Not even the Securities Litigation Reform Act,
the statute that has moved the farthest from notice plead-
ing for a particular subject matter (securities class actions),
requires proof as opposed to plausible allegations. See, e.g.,
Makor Issues & Rights, Ltd. v. Tellabs, Inc., 437 F.3d 588
(7th Cir. 2006); Asher v. Baxter International Inc., 377 F.3d
727 (7th Cir. 2004). Simpson’s claim rests on 42 U.S.C.
§1983, and there are no heightened pleading requirements
for suits under that statute. See Crawford-El v. Britton, 523
U.S. 574 (1998); Leatherman v. Tarrant County, 507 U.S.
163 (1993). Facts need not be “established” or even alleged
(fact-pleading is unnecessary); a plaintiff receives the
benefit of any fact that could be established later consistent
with the complaint’s allegations. See, e.g., Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355
U.S. 41, 45-46 (1957).
4 No. 05-4686
Defendants contend that the disciplinary board’s finding
is conclusive against Simpson, and if that is so then there
is no point in a remand. Issue preclusion (collateral
estoppel) is an affirmative defense, see Fed. R. Civ. P. 8(c),
and the consideration of matter outside the complaint (such
as the disciplinary board’s finding) requires the district
court to treat the defendant’s motion as one for summary
judgment. If nothing that Simpson could show would stave
off that summary judgment, however, then dismissing the
complaint instead of waiting for a Rule 56 motion was
harmless error.
Whether a given decision has preclusive effect depends on
state law. See 28 U.S.C. §1738. We must accord the board’s
disposition the same effect as a court of Wisconsin would.
Wisconsin’s judiciary does not treat the factual conclusions
of prison disciplinary boards (or any other state agency) as
beyond the power of a court to examine. When a state judge
may review findings of fact in an agency’s decision, then a
federal judge may do so too. See Astoria Federal Savings &
Loan Ass’n v. Solimino, 501 U.S. 104 (1991). By attaching
the disciplinary board’s decision to his complaint, Simpson
assuredly did not vouch for its correctness. See Carroll v.
Yates, 362 F.3d 984 (7th Cir. 2004). He cannot prevail
without proving that he is right and the board wrong, see
Hasan v. Department of Labor, 400 F.3d 1001 (7th Cir.
2005), but the obligation to supply proof comes after the
pleading stage. (The district judge relied on Hasan without
noting that it arose under Rule 56 rather than Rule
12(b)(6), and that Hasan had failed to provide evidence to
back up the complaint’s allegations.)
As defendants see things, Heck and Edwards create a
federal rule of issue preclusion that operates even when
state law allows review of prison disciplinary decisions.
That is not, however, what the Supreme Court said, and
it would not be consistent with §1738. See Marrese v.
American Academy of Orthopaedic Surgeons, 470 U.S. 373
No. 05-4686 5
(1985). The Court held in Heck and Edwards that a prisoner
whose grievance implies the invalidity of ongoing custody
must seek review by collateral attack (28 U.S.C. §§ 2241,
2254, or 2255, or a state-law equivalent). Only after the
custody is over may the prisoner use §1983 to seek damages
against persons who may have been responsible; indeed, the
§1983 claim does not accrue until the custody ends. This is
not because federal courts are bound by decisions of state
administrative agencies, but because as a matter of federal
law any challenge to the fact or duration of custody must
proceed under §2254 or an equivalent statute. See Preiser
v. Rodriguez, 411 U.S. 475 (1973). In such a collateral
challenge the state agency’s (or state court’s) decision may
be reexamined; that alone is enough to show that Heck and
Edwards do not establish free-standing rules of issue or
claim preclusion.
Because Heck and Edwards concern the allocation
between collateral review and damages actions as a matter
of federal law, they have no application when collateral
review is unavailable—either because the plaintiff’s custody
has expired or because he was never “in custody” as a result
of the defendants’ contested actions. See Muhammad v.
Close, 540 U.S. 749, 754-55 (2004); DeWalt v. Carter, 224
F.3d 607 (7th Cir. 2000). Neither disciplinary segregation
nor a reduction in the amount of recreation is a form of
“custody” under federal law; Heck and Edwards thus are
beside the point.
The district court did not mention Muhammad and
misunderstood DeWalt, reading it as if the holding de-
pended on the fact that DeWalt may have been able to
prevail even if the prison disciplinary board’s decision were
deemed correct—while the board’s finding that Simpson is a
liar prevents him from establishing an indispensable
ingredient of his constitutional claim. What Muhammad
and DeWalt hold is unrelated to the details of any plain-
tiff’s theory. They establish that the doctrine of Heck and
6 No. 05-4686
Edwards is limited to prisoners who are “in custody” as a
result of the defendants’ challenged acts, and who therefore
are able to seek collateral review. Take away the possibility
of collateral review and §1983 becomes available. Simpson
can’t obtain collateral relief in either state or federal court,
so he isn’t (and never was) affected by Heck or Edwards.
Simpson contends that his letter and original suit con-
tained truthful accusations, for which he has been penal-
ized. Defendants contend (and the prison disciplinary board
found) that Simpson’s accusations were false and malicious.
If Simpson is correct, then the defendants have violated his
constitutional rights by penalizing protected speech. If
defendants are correct, then they have not violated
Simpson’s rights—and this suit is itself frivolous, for if
Simpson was lying in the past, then he well knows that he
has no right to recover now, and his attempt to obtain
damages from people who recognized the lie for what it was
must be characterized as an abuse of process. The district
judge did not relish the prospect of resolving such a clash,
but decision is essential. Otherwise prison disciplinary
boards could immunize guards who violate prisoners’ rights,
and the act of penalizing speech would be self-vindicating.
The district judge strongly suspected that Simpson’s
current contentions are false. This is not a good ground for
dismissing a complaint, see Johnson v. Stovall, 233 F.3d
486 (7th Cir. 2000), but if Simpson loses he faces sanctions.
There is no way that the current suit can be plausibly
incorrect: if Simpson loses, it can only be because he was
lying then and is lying now. Frivolous suits may cost
prisoners the privilege of litigating in forma pauperis, see
28 U.S.C. §1915(g), and financial sanctions may be imposed.
If these sanctions are not paid, we have the option of
curtailing further litigation through an order under Support
Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir.
1995). Simpson should reflect on these possibilities before
deciding to continue this litigation.
VACATED AND REMANDED
No. 05-4686 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-12-06