# Muriel D. Black v. Michael P. Lane, Michael Neal, P.A. Severs, Captain > Court of Appeals for the Seventh Circuit · May 31, 1994 · 22 F.3d 1395 URL: https://www.frixlaw.com/law-library/cases/9486691 ## Case - **Full name:** Muriel D. BLACK, Plaintiff-Appellant, v. Michael P. LANE, Michael Neal, P.A. Severs, Captain, Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** May 31, 1994 - **Citations:** 22 F.3d 1395 - **Precedential status:** Published - **Opinion:** Dissent by Manion - **Judges:** Lay, Ripple, Manion - **Cited by:** 353 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9486691 ## How later opinions describe it (automated extraction) - concluding that at the pleading stage, if a plaintiff alleges that he was punished with segregation and loss of good time credits as a result of “false” and “unjustified” disciplinary charges, then these allegations plausibly could “mean that the tickets and resulting segregat… - concluding that the appellant’s complaint sufficiently pleaded a retaliation claim for purposes of a default judgment, in part because “the plaintiff . . . attempt[ed] to set forth the facts supporting his claims in an evidentiary proceeding before the district court on damages” - rejecting defendant’s claim that filing of false disciplinary charges does not state a due process claim where procedural requirements are met and disciplinary action is supported by some evidence, because retaliatory issuance of false disciplinary charges can themselves amoun… - finding that it was proper to dismiss a defendant who was named in a case caption but was not otherwise mentioned in the factual allegations ## Opinion text MANION, Circuit Judge, dissenting. 1 On June 4, 1979, Muriel Black, an inmate at the Menard Correctional Center in Illinois, *1406 filed an administrative complaint with the United States Department of Justice, alleging that prison officials assigned various prisoner jobs on the basis of race in violation of the Fourteenth Amendment. Black contends that he has since been the target of a campaign of retaliation, in the form of threats and assaults, on the part of Menard prison officials. Black, proceeding pro se, filed a complaint for discrimination and retaliation. The district court dismissed the discrimination count and granted summary judgment on the retaliation count. On appeal this court reversed. Black v. Lane, 824 F.2d 561 (7th Cir.1987) (“Black I ”). On remand Black’s appointed counsel filed a second amended complaint. For some reason the defendants missed the deadline for filing an answer and defaulted. The magistrate judge awarded minimal damages for the discrimination count and dismissed the retaliation (and other) counts for failure to state a claim. Since neither side appealed any portion of the discrimination judgment, the primary remaining issue is the retaliation claim. It is not clear from the complaint that the retaliation claim stems from the July 4, 1979 filing. However, the magistrate judge and this court in Black I clearly stated that any alleged retaliation was tied to that complaint before the Department of Justice; thus I accept that determination. According to his second amended complaint, the first purported act of official retaliation did not occur until July of 1982, more than three years after Black had filed his administrative complaint. The magistrate, relying upon this Circuit’s previous decisions in Murphy v. Lane, 833 F.2d 106 (7th Cir.1987), and Benson v. Cady, 761 F.2d 335 (7th Cir.1985), found that this three-year gap precluded an inference of retaliatory intent on the part of the prison officials and dismissed Black’s complaint. On this appeal the court concludes that the magistrate was not free to point out this obvious defect because the court in Black I had previously determined that Black’s original complaint had sufficiently stated a claim of retaliation, and that this earlier determination was binding upon the magistrate through law of the case. For the following reasons, I respectfully dissent. I. Certain passing statements made in Black I do not constitute the law of the case now before us. In Black I, the original magistrate granted summary judgment to the State on Black’s claim of retaliation. In reaching its determination, the magistrate relied upon the affidavits of two prison officials, Sergeant Aldridge and Officer Inman, in which both conceded that they had locked Black in his cell and prevented him from performing his job as a counselor’s clerk, but stated that they did so not out of retaliation but for security reasons. On appeal, the only issue before the court in Black I with respect to the retaliation claim was whether the State, by filing its affidavits, had actually created a question of credibility which could not properly be determined on summary judgment. The court in Black I correctly concluded that such was the case and appropriately remanded this issue with the expectation that it would be further explored and determined, if necessary, at trial. Thus, the only “decree” in Black I to which law of the case would apply was the court’s conclusion that the magistrate, in choosing to believe the officers instead of Black, had made an impermissible credibility determination and that this was inappropriate on summary judgment. Id. 824 F.2d at 562 . But the court in Black I was not asked to address — and indeed did not address— whether the limited facts as contained in Black’s complaint were by themselves sufficient to state a claim for retaliation. As I pointed out earlier, Black I’s discussion revolved around the issue of credibility. Black I did not conclude that keeping Black locked in his cell during his scheduled work assignment was retaliation, but simply noted that the affidavits explaining the lockup created a question of fact barring summary judgment. Had the State simply moved to dismiss, and never filed its affidavits, the magistrate *1407 would have been left only with Black’s complaint, from which he would have had to determine whether Black had alleged such misconduct that would permit a reasonable inference of retaliatory intent on the part of Menard prison officials. But as it turned out, the State’s attorney, perhaps unconvinced that the court would dispose of the complaint by dismissal, submitted some affidavits thinking that this would boost her chances of recess. What this strategy actually achieved, however, was to create issues of credibility, thus forcing the issue beyond the pleadings. For this reason the court in Black I never had the occasion to address the sufficiency of the complaint alone to see if it stated a plausible claim of retaliation. Therefore, any of the statements in Black I regarding the substance of Black’s allegations were at most non-binding dicta offered in the expectation that these matters would be determined only after the presentation of evidence at trial. They certainly are not part of the court’s judgment in Black I which would constitute law of the case. See Coca-Cola Bottling Co. of Schreveport, Inc. v. Coca-Cola Co., 988 F.2d 414 , 429-30 (3rd Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 289 , 126 L.Ed.2d 239 (1993) (dicta cannot be the predicate ruling to which law of the case applies); see also 18 Charles B. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 4478 at 788 (1983) (law of the case only acts to prevent reconsideration by a subsequent appellate court of matters that were once resolved by a prior panel). Therefore, the magistrate on remand committed no error in not treating Black I’s reference to the allegations as law of the case. We now have a different issue than we had in Black I. The affidavits that generated the factual questions are not before us. Given the State’s default, we now come back to ground zero — the amended complaint as it applies to retaliation. The only question is whether the allegations contained in Black’s second amended complaint sufficiently stated a claim of retaliation. It is true that, upon the magistrate’s entry of default, the State lost all standing to challenge the truth of the well-pleaded facts contained in Black’s complaint. See United States v. Di Mucci, 879 F.2d 1488, 1497 (7th Cir.1989); Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir.1983). But, contrary to the court’s intimations, the State still retained the right to test the sufficiency of the allegations to see if they stated a claim for which relief may be granted. See Alan Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir.1988), cert. denied, 493 U.S. 858 , 110 S.Ct. 168 , 107 L.Ed.2d 124 (1989) (on appeal the defendant is entitled to challenge the sufficiency of the complaint and its allegations to support the judgment); see also 10 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 2688 at 447-48 (1983) (“it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit to mere conclusions of law.”). To successfully make out a claim for retaliation for the exercise of a constitutionally protected right, a plaintiff has the burden of proving the ultimate fact of retaliation. See Murphy v. Lane, 833 F.2d 106, 108 (7th Cir.1987); Benson v. Cady, 761 F.2d 335, 342 (7th Cir.1985). One method of proving retaliation and of avoiding dismissal, is to allege a chronology of events from which the ultimate fact of retaliation plausibly may be inferred. For the inference to be a plausible one, however, there must not be a significant gap in time between the exercise of protected activity and the purported act of retaliation. We have previously held that a five-month gap “greatly weakens any inference” that an act was taken in retaliation for the exercise of constitutional rights. See Benson, 761 F.2d at 342 . 2 Here, the chronology of events alleged in Black’s second amended complaint clearly reveal a three-year gap between the filing of the administrative complaint on June 4,1979, and the first purported act of retaliation in July of 1982. Other alleged acts of *1408 retaliation for filing the 1979 complaint occurred even later in 1984, 1985, 1986 and 1987. On its face, therefore, this chronology of events does not allow a reasonable inference of retaliation. The court avoids this three-year gap by essentially rewriting Black’s complaint. The court provides a helpful “addendum” in which it “lists” the chronology of the various actions the defendants took towards Black from the moment he filed his complaint with the Justice Department. Yet this chronology bears no resemblance whatsoever to the chronology of purportedly retaliatory acts that Black actually alleged in his second amended complaint. Our analysis is confined to what he says in the complaint for retaliation; it cannot include whatever extrinsic matters we may glean from the expanded record that was before the court in Black I. See Kush v. Amer. States Ins. Co., 853 F.2d 1380, 1382 (7th Cir.1988). Nor can we consider allegations in the separate count .of discrimination which has been adjudicated and is not on appeal. In Black’s second amended complaint there is a subheading “B” captioned “Count II — Retaliation For Exercising Constitutional Rights,” under which the first alleged act of retaliation is the incident occurring in July of 1982, three years after Black filed his complaint with the Justice Department. By comparison, however, the court’s chronology reaches back to incidents which occurred in August of 1979, two months after Black filed his administrative complaint, and which continued through to June of 1980. The court even goes so far as to list various incidents occurring one to three months before Black blew the whistle on the State’s discriminatory practices. The court “has no duty to conjure up allegations in order to bolster the plaintiff’s chances of surviving a 12(b)(6) motion to dismiss.” Fleet Credit Corp. v. Sion, 893 F.2d 441, 444 (1st Cir.1990) (internal quotations omitted). Nor is it appropriate for this court to cure Black’s complaint by discovering the missing allegations in a reply brief, which “is neither a complaint or an amendment to a complaint.” Harrell v. United States, 13 F.3d 232, 236 (7th Cir.1993) (“If a complaint fails to state a claim even under the liberal requirements of the federal rules, the plaintiff cannot cure the deficiency by inserting the missing allegations [in a brief.]”). 3 Black had able counsel and ten years to get it right. The defendants blew the deadline, but even without opposition Black’s complaint will not hold up. Therefore, based on the facts that were actually pleaded in support of Black’s retaliation claim, I would affirm the magistrate judge’s decision to dismiss the insufficient claim for retaliation. II. Also, Black’s pleadings do not allege a denial of procedural, and certainly not substantive, due process. First, with respect to Black’s procedural due process claim, it is apparent that Black has failed to plead any “factual” allegations. In his complaint Black merely asserted in conclusory fashion that the prison officials had “knowingly and falsely” issued “unjustified” disciplinary tickets. Yet nowhere in his complaint does Black allege that he was denied the procedural protections first set forth in Wolff v. McDonnell, 418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974), and followed by this court in Hanrahan v. Lane, 747 F.2d 1137 (7th Cir.1984), McKinney v. Meese, 831 F.2d 728 (7th Cir.1987), and Cain v. Lane, 857 F.2d 1139 (7th Cir.1988), that were designed to guard against just this very sort of arbitrary action. The court correctly sets forth these requirements in footnote 9 of its opinion so I won’t repeat them here. But Hanrahan holds that merely alleging — as was done here — that prison officials used false evidence as a basis to issue disciplinary tickets, “fails to state a claim for which relief can be granted where the procedural due process protections as required in Wolff v. McDonnell are provided.” Hanrahan, 747 F.2d at 1141 . Black cannot dodge dismissal of wholly conclusory procedural due process claims simply by omitting crucial allegations from his pleadings. *1409 Because Black failed to allege that he was deprived of the procedural due process protections as set forth in Wolff , this portion of Black’s complaint fails to state a claim. 4 It is correct that a claim in the district court for a violation of due process in general sufficiently preserves for appellate review any argument regarding substantive, as well as procedural, due process. See Kauth v. Hartford Ins. Co. of Illinois, 852 F.2d 951 , 954 n. 4 (7th Cir.1988). But here the court claims to have found authority from this Circuit in Cain, supra, as well as the Eighth Circuit in Sprouse v. Babcock, 870 F.2d 450 (8th Cir.1989), which purportedly allows a prisoner to recycle his retaliation claim and get extra mileage out of it by framing it as a violation of substantive due process. Neither Cain nor Sprouse support this conclusion. Cain involved allegations that a prison’s disciplinary committee issued disciplinary tickets to a prisoner in retaliation for the prisoner’s exercise of his right to free speech as guaranteed by the First and Fourteenth Amendments. See Cain, 857 F.2d at 1141-42 . In making the statement relied upon by this court, the court in Cain was simply noting that otherwise appropriate procedural formalities cannot be used as a coverup for an infringement of the right to free speech. Cain certainly did not authorize the use of a substantive due process analysis to cure First Amendment violations. Furthermore, the issue before the Eighth Circuit in Sprouse was whether, for purposes of 42 U.S.C. § 1983 , the plaintiff’s complaint alleged a violation of a substantive versus a procedural right. See Sprouse, 870 F.2d at 452 . Viewed in their proper context it is clear that the referenced passages from Sprouse have absolutely nothing to do with substantive due process. Such oblique authority hardly provides the solid legal underpinning necessary to legitimize what this Circuit would otherwise reject as a redundant claim. In sum, the court can point to no solid legal authority from this Circuit or elsewhere for its assertion that Black’s claim alleges a violation of substantive due process. 5 III. In conclusion, there is no question that Black’s allegations — which we must accept as true, given the procedural posture of this case — state several caustic incidents on the part of Illinois prison officials. But notwithstanding the severity of these allegations, Black’s claim could not, at least consistent with this Circuit’s law, state a claim of retaliation, and for that reason the magistrate judge was correct in ordering this complaint dismissed. And the fact that the State missed its deadline after remand and, as a result, wound up with an entry of default should not, under the appropriate standard of review, have altered this result. Therefore, I would affirm the magistrate judge’s order dismissing Black’s claims for retaliation and denial of due process, and reinstate the judgment in favor of defendants. . I agree with the court’s conclusion in footnote 4 that since Black did not challenge the magis *1406 trate’s award of damages for his claim of racial discrimination in his initial brief to the court, that issue is not before us in his appeal. Therefore, Black’s appeal is confined to the magistrate's dismissal of his claims for retaliation and denial of due process. . In fact, the only decision in this Circuit expressly finding that a complaint had sufficiently alleged retaliatory intent involved a litigious inmate who alleged that he was transferred from one correctional center to another “immediately” — or, in any event, no more than two months — after filing suit against prison officials. See Murphy, 833 F.2d at 109 , 109 n. 1. . Moreover, it is inconsistent for the court to look to Black’s reply brief in hopes of propping up his retaliation claim, see op. at 1400-01, yet refuse (rightly, as I pointed out earlier) to rely on it when it comes to his challenge to the magistrate's award of damages for discrimination. See op. at 1397 n. 4. . Along these same lines, the court's discussion of the "some evidence" standard is irrelevant to this action. That standard merely refers to our limited review of a disciplinary committee's findings when these are being challenged as unsupported by the evidence. Cain, 857 F.2d at 1145 ; Hanrahan, 747 F.2d at 1140, 1141 . But we don’t even get to that inquiry where, as here, the plaintiff has not included in his complaint any allegations concerning the actions taken and findings given by the disciplinary committee in issuing its decision. . As to Cale v. Johnson, 861 F.2d 943 (6th Cir.1988), I simply note that it purports to find support for its holding in Franco v. Kelly, 854 F.2d 584 (2d Cir.1988), a case which, like Sprouse , addressed whether a plaintiff had, for purposes of § 1983, alleged a violation of a substantive constitutional right. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9486691. Public record. Not legal advice.