by Matt Clarke

On February 2, 2022, the U.S. Court of Appeals for the Seventh Circuit revived a Wisconsin prisoner’s retaliation claim against a state prison guard, saying that the district court erred when it dismissed the poorly pleaded pro se civil rights complaint with prejudice without first granting an opportunity to amend the complaint.

The prisoner, Mitchell G. Zimmerman, filed his 42 U.S.C. § 1983 complaint pro se in federal court for the Eastern District of Wisconsin in February 2021, accusing Fox Lake Correctional Institution guard Glenn Bornick of violating his First Amendment rights by retaliating against him for verbally complaining and filing grievances about Bornick’s alleged misconduct, improperly confiscating the prisoner’s property and sending him to disciplinary confinement for a 16-day stint.

The district court dismissed the complaint at the screening stage, saying it failed to state a claim for which relief could be provided. As the Seventh Circuit later recalled, the lower court said the prisoner failed to “establish a causal relationship between Officer Bornick’s actions and any protected speech.” Moreover, “because Zimmerman’s allegations were thorough,” the district court also decided that “any amendment to the complaint would be futile,” hence the decision to dismiss it with prejudice, as well as to deny a pair of subsequent motions for reconsideration.

Zimmerman appealed. Taking up the case, the Seventh Circuit allowed that the prisoner’s “allegations were threadbare and did not clarify what speech he believes caused Officer Bornick to retaliate against him.” Nor, the Court continued, “did Zimmerman specify the content, timing, or number of those grievances” that allegedly ignited the guard’s ire, leaving the complaint “too sparing to see a plausible connection between Officer Bornick’s alleged overstepping and Zimmerman’s protected speech.”

Yet while unable to say the decision to dismiss the complaint was wrong, the Court was “concern[ed] with the pleading burden the district court seemed to hold Zimmerman to,” which apparently exceeded the requirements of Federal Rule of Civil Procedure (FRCP) 8(a): a series of “short and plain” statements laying out “the grounds for the court’s jurisdiction,” a claim “showing that the pleader is entitled to relief,” and “a demand for the relief sought.”

For instance, the district court “may have drifted beyond reviewing the legal sufficiency of Zimmerman’s allegations into a fact-finding role,” when it examined the complaint’s claims that Bornick was guilty of “losing his cool, overstepping, and harassing Zimmerman through retaliatory acts” and determined instead that the guard “did nothing more than monitor Zimmerman”—an “altogether different account” of the facts from those presented by the prisoner.

“Put another way,” the Court continued, “federal pleading standards do not ‘demand that complaints contain all legal elements (or factors) plus facts corresponding to each,’” citing Chapman v. Yellow Cab Coop., 875 F.3d 846 (7th Cir. 2017). Rather, “[t]he cornerstone at the motion to dismiss stage remains for district courts to treat all allegations as true and to draw all reasonable inferences in the plaintiff’s favor,” as the U.S. Supreme Court held in Erickson v. Pardus, 551 U.S. 89 (2007).

The Court also gave a “soft reminder” that FRCP 8(a) “does not require plaintiffs to ‘pin’ their claim for relief to any particular legal theory at the pleading stage,” citing another U.S. Supreme Court ruling in Skinner v. Switzer, 562 U.S. 521 (2011). Furthermore, the district court had held that Zimmerman’s confrontations and arguments with Bornick were “not protected” by the First Amendment, to which the Court replied, “Maybe. But maybe not.” That matter, the Court said, has not yet been resolved within the Seventh Circuit.

Thus, because the law permits amendment of the complaint unless clearly futile or unwarranted, and because the Court could not say for certain that Zimmerman’s initial complaint suffered from obviously incurable defects, it vacated the district court’s dismissal and remanded with instructions to afford Zimmerman a chance to amend his complaint. See: Zimmerman v. Bornick, 25 F.4th 491 (7th Cir. 2022).

The case has now returned to the district court, where Zimmerman’s amended complaint was filed on March 10, 2022. A scheduling order issued two months later set a discovery deadline for the following October. PLN will continue to report developments in the case as they are available. See: Zimmerman v. Bornick, USDC (E.D. Wis.), Case No. 2:21-cv-00209. 

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