Judges: Posner
Filed: Oct. 01, 2013
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 12-1886 TYRONE C. WILLIAMS, Plaintiff-Appellant, v. SHERI WAHNER, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Central District of Illinois. No. 2:12-cv-02085-MPM-DGB — Michael P. McCuskey, Judge. _ SUBMITTED AUGUST 29, 2013 — DECIDED OCTOBER 1, 2013 _ Before POSNER, ROVNER, and TINDER, Circuit Judges. POSNER, Circuit Judge. The complaint in this pro se pris- oner’s civil rights suit under
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 12-1886 TYRONE C. WILLIAMS, Plaintiff-Appellant, v. SHERI WAHNER, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Central District of Illinois. No. 2:12-cv-02085-MPM-DGB — Michael P. McCuskey, Judge. _ SUBMITTED AUGUST 29, 2013 — DECIDED OCTOBER 1, 2013 _ Before POSNER, ROVNER, and TINDER, Circuit Judges. POSNER, Circuit Judge. The complaint in this pro se pris- oner’s civil rights suit under ..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐1886
TYRONE C. WILLIAMS,
Plaintiff‐Appellant,
v.
SHERI WAHNER, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:12‐cv‐02085‐MPM‐DGB — Michael P. McCuskey, Judge.
____________________
SUBMITTED AUGUST 29, 2013 — DECIDED OCTOBER 1, 2013
____________________
Before POSNER, ROVNER, and TINDER, Circuit Judges.
POSNER, Circuit Judge. The complaint in this pro se pris‐
oner’s civil rights suit under 42 U.S.C. § 1983 alleges that the
defendants, two officials of an Illinois jail, willfully failed to
prevent other inmates from assaulting the plaintiff. In accor‐
dance with what appears to be a common practice in the
Central District of Illinois, remarked by us in Budd v. Motley,
711 F.3d 840, 841–42 (7th Cir. 2013); Smith v. Knox County Jail,
2 No. 12‐1886
666 F.3d 1037, 1039 (7th Cir. 2012); Riley v. Kolitwenzew, 2013
WL 1286646, at *1–2 (7th Cir. Apr. 1, 2013); Myrick v. Anglin,
496 F. App’x 670, 672, 674 (7th Cir. 2012); Sousa v. Anglin, 481
F. App’x 265, 266–67 (7th Cir. 2012); Kincaid v. Sangamon
County, 435 F. App’x 533, 536 (7th Cir. 2011), and LaVeau v.
Snyder, 84 F. App’x 654 (7th Cir. 2003), all per curiam, the
district judge conducted a telephonic “merit‐review hearing”
with the plaintiff. This had been done shortly after the com‐
plaint was docketed and before any other filings or activity
in the case, except the filing and granting of the plaintiff’s
petition for leave to proceed in forma pauperis, had oc‐
curred. On the basis of the hearing, the judge dismissed the
complaint for failure to state a claim. He stated that the
plaintiff had “no evidence that the guards … had any
knowledge of any threat made by the inmate who assaulted
him. Plaintiff admitted that the assault came without warn‐
ing.” There is no transcript of the hearing, and no explana‐
tion why the judge thought the guards’ knowledge material;
the defendants are not guards, but officials. The dismissal
was without leave to amend, and therefore, being a final de‐
cision on the merits, with prejudice. 9 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 2373, pp.
739–43 and n. 4 (3d ed. 2008).
The procedure employed by the judge was inquisitorial.
It resembles the procedure employed by a French juge
d’instruction, who doubles as judge and investigator, Code
de Procédure Pénale, arts. 81, 81‐1, 82; Jacqueline S. Hodg‐
son, “The French Prosecutor in Question,” 67 Wash. & Lee L.
Rev. 1361, 1368–69 and nn. 42, 45–48 (2010); Jacqueline
Hodgson, “The Role of the Criminal Defence Lawyer in an
Inquisitorial Procedure: Legal and Ethical Constraints,” 9
Legal Ethics 125, 129 (2006), and by similar officials in other
No. 12‐1886 3
Continental judicial systems. See Abraham S. Goldstein &
Martin Marcus, “The Myth of Judicial Supervision in Three
‘Inquisitorial’ Systems: France, Italy, and Germany,” 87 Yale
L.J. 240, 256–62 (1977). The practice has no basis in American
law other than in proceedings before some administrative
agencies, and was conducted in this case without any of the
safeguards that attend the Continental practice, such as the
right to assistance of counsel, see Hodgson, supra, at 129–31,
and to present and challenge evidence. Id. at 131.
What is true is that “the [federal district] court shall re‐
view, before docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity
or officer or employee of a governmental entity,” and if on
the basis of this review the judge finds that the complaint “is
frivolous, malicious, or fails to state a claim upon which re‐
lief may be granted,” he shall dismiss it. 28 U.S.C.
§§ 1915A(a), (b)(1). It is also true that, if skeptical from his
reading of the complaint that the plaintiff will be able to
prove his case, the judge can on his own initiative institute a
summary judgment proceeding, Celotex Corp. v. Catrett, 477
U.S. 317, 326 (1986); Golden Years Homestead, Inc. v. Buckland,
557 F.3d 457, 461–62 (7th Cir. 2009); Simpson v. Merchants Re‐
covery Bureau, Inc., 171 F.3d 546, 549 (7th Cir. 1999)—though
he must warn a pro se plaintiff that without admissible
documentary evidence (as distinct from argument) to sup‐
port the allegations of the complaint, summary judgment
may be granted for the defendant. Celotex Corp. v. Catrett, su‐
pra, 477 U.S. at 326; Pactiv Corp. v. Rupert, 724 F.3d 999, 1001
(7th Cir. 2013); Simpson v. Merchants Recovery Bureau, Inc., su‐
pra, 171 F.3d at 549; Lewis v. Faulkner, 689 F.2d 100, 101–02
(7th Cir. 1982).
4 No. 12‐1886
Neither procedure (early screening or summary judg‐
ment), unlike its Continental counterparts, contemplates an
oral examination of a party by the judge designed to elicit
answers that will enable the judge to resolve contestable fac‐
tual issues. If the validity of a claim depends on the accuracy
of the plaintiff’s factual allegations, as it does in this case,
and their accuracy can’t be resolved without an oral hearing,
it is a matter to be resolved at trial, see, e.g., Anderson v. City
of Bessemer, 470 U.S. 564, 575 (1985); Poller v. Columbia Broad‐
casting System, Inc., 368 U.S. 464, 473 (1962); United States v.
Woolfolk, 197 F.3d 900, 904 (7th Cir. 1999), in conformity with
the procedures that govern trials, none of which the judge
employed.
Apart from one case in the Eastern District of Wisconsin,
Whiteside v. Morgan, 2012 WL 1933703, at *1–2 (E.D. Wis.
May 29, 2012), the Central District of Illinois is, as far as we
know, the only federal judicial district in the entire country
that employs the procedure used in this case—and in White‐
side it was used only to clarify the plaintiff’s allegations,
rather than as a basis for dismissal; in fact the judge did not
dismiss the case. Nor to our knowledge has any appellate
court endorsed the practice, at least in a published (in the
sense of precedential) opinion. Of the cases in this court that
we cited earlier, Budd, LaVeau, Myrick, Kincaid, and Smith
mention the practice noncommittally, in the sense of neither
approving nor disapproving it; Sousa seems critical but does
not go so far as to question its legality; Riley calls the practice
“useful” but is not a published opinion. In all the cases ex‐
cept LaVeau we reversed the dismissal of the complaint
without relying on the merit‐review hearing, so there was no
pressing need to consider the legality of the procedure—and
in LaVeau the basis for dismissal was not anything that had
No. 12‐1886 5
happened at the oral hearing; it was the delusional character
of the allegations in the plaintiff’s written submissions.
It is time to end the practice. It is unlawful. But we need
to distinguish between the judge’s resolving material factual
disputes on the basis of his interrogation of the plaintiff, and,
as in Whiteside, his simply trying to determine what the
plaintiff is alleging. Many prisoners can explain themselves
orally but not in writing. They may be illiterate in English, or
they may simply be such poor writers that they can’t convey
their thoughts other than orally. So we can understand a
judge’s wanting to clarify an unclear pro se complaint by in‐
terviewing the plaintiff. But the judge must be careful not to
allow so innocent an oral examination to molt into a judicial
cross‐examination designed to elicit admissions (as in:
”Plaintiff admitted that the assault came without warning”).
When the complaint is unclear rather than patently with‐
out merit, an alternative to the oral examination is to dismiss
the complaint with leave to amend, though in doing so the
judge should explain, for the guidance of the pro se prisoner,
what exactly needs to be clarified. Donald v. Cook County
Sheriff’s Dep’t, 95 F.3d 548, 555–56 (7th Cir. 1996); Nasious v.
Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007); Stewart v. Wisconsin, 2013 WL 149342, at *2–3 (E.D.
Wis. Jan. 14, 2013); cf. James v. Pliler, 269 F.3d 1124, 1126 (9th
Cir. 2001).
But the procedure employed in this case was unaccept‐
able. The judgment is therefore reversed and the case re‐
manded to the district court for further proceedings consis‐
tent with this opinion.
REVERSED AND REMANDED.