Charles Kyle v. Morton High School, District 201, Margaret A. Kelly, Judy Thompson

Plаintiff-Appellant, KYLE, Charles SCHOOL, District HIGH

MORTON Kelly, Judy Thompson,

Margaret A. Defendants-Appellees. al.,

et 97-2081.

No. Appeals, Court of

United States Circuit.

Seventh

Argued Dec. 1997. May

Decided failure to state a claim

causes actions for granted, can see Fed. which relief and, 12(b)(6), in the R.Civ.P. absence claims, supple to exercise federal declined jurisdiction law mental over state 1367(c)(3). counts, see 28 U.S.C. contending Kyle appeals, the district court improperly. his claims dismissed federal' Kyle’s district court The dismissal ended ease, independent an and we now conduct propriety of the review of dismissal. See 1291, 1294; §§ Regina Salve Col 28 U.S.C. Russell, lege v. 111 S.Ct. (1991); 1217, 113 L.Ed.2d 190 Stevens (7th Cir.1997). Umsted, In well-pleaded our review we consider factual allegations be true. We permissible plaintiffs make inferences favor, our of the and recitation facts reflects principle. Mallett v. Wisconsin Div. Rehabilitation, Vocational (7th Cir.1997). According Kyle’s complaint, amended Community Education Director Superintendent Mor- and Assistant to the Cicero, special meeting At a ton Illinois. (the Morton Education (the Board) on Board Meet- March ing), honorably the Board dismiss resolved Harry Casey, (argued), J. Goiter John employees. certain The Board staff Vacin, Hamblet, Chicago, & Casey, Oremus positions explained employees’ were IL, Plaintiff-Appellant. for being money. According eliminated to save however, complaint, reason al- (argued), “[t]he F. Cope, Ronald Donahue John Diamond, Bush, leged by the the elimination of Aneel, Glink, Cope Board for Chica- & position IL, Plaintiffs was a sham. There was Defendants-Appellees. go, for eliminating financial Morton no benefit to MANION, CUDAHY, FLAUM and Before position.” Plaintiffs The states Judges. Circuit “[sjhortly the March ex- after session, by a ecutive Plaintiff was advised PER CURIAM. who Board Member and others attended defendants, High meeting that for termi- Morton the reason Plaintiffs One (Morton), teaching political advoсacy for not renew the nation was and reasons. School did Kyle. Kyle Thus, plaintiff, knowing Charles Defendants acted violation contract of its Plaintiffs free rights and members First Amendment sued school district court, seeking damages and and board association.” federal deprivation alleges of various the “named defen- equitable remedies for individual conspiracy together under the Civil dants have acted and in federal constitutional 1979,1980, politicians §§ who are Rights Act Rev. Stats. with individuals 1985(3), deprive §§ amended, political functionaries to Plaintiff of 42 U.S.C. in- him in wrongful position, intentional hinder harass termination and seeking employment Illinois new or contract work fliction of distress under emotional political Plaintiff generally punish the federal and to law. The district court dismissed advocacy conspira- activities which the rejected plaintiffs district court interpre tors tо their tation of cases, deemed adverse inter- these more recent state Hampson Education, they ests and which intended to stifle v. Board 215 Ill. App.3d 159 Ill.Dec. against Compl. their actions Plaintiff.” Am. 576 N.E.2d 54 1991), ¶¶ (Ill.App.Ct. 3, 6, 8,10,12. and Howard v. Board of Education, Ill.App.3d 309, 112 Ill.Dec. (Ill.App.Ct.1987), N.E.2d process I. Due claim grounds that “in the ease de I complaint, Kyle Count specify fendants did the reason for his dis maintains that under the Illinois School Code missal—shortage Therefore, of funds. he was entitled to a written notice of dismiss notice the received was not defec specified al that the true reason he was tive.” The district court did not address Kyle argues fired.1 that because his notice Kyle’s contention that the Board violated the allegedly gave dismissal an inaccurate rea Open Meetings by failing Aet any to record termination, son for his he was dismissed discussion of the Kyle’s reasons for termi adequate without notice of his dismissal. nation. Kyle’s opposition memorandum in to the mo Kyle’s On claim of a process due violation dismiss, Kyle tion to also asserted that the deprivation for of a property interest in his comply Board failed to with Open the Illinois probationary teaching position, the district Act, Meetings 120/1-3, Comp. 5 Ill. Stat. precedents court our correctly. read Kyle’s because the record of the Meeting Board process because, due claim fails under Illinois any does not reflect discussion of the reasons law, property he had no job interest in his for termination.2 Because of these Thus, Morton. for Due pur Process Clause alleged procedural irregularities, Kyle ar poses, it is irrelevant whether the notice of gues, firing deprived process his him of due probationary dismissal of a teacher violated property public and a in employ interest his procedural requirements of the Illinois ment. Code, School Meeting whether that, The district court concluded as a complied with Open the Illinois Meetings teacher, Kyle nontenured property had no Act. assuming Even that intervening deci job interest his under Illinois law. There sions appellate the Illinois courts after fore, the Constitution did not entitle procedural Miller established stricter re Educ., process. due See Austin v. Board quirements for the probation dismissal of a Cir.1977); 562 F.2d Miller v. ary Code, teacher- under Illinois School School Dist. No. 500 F.2d procedural these refinements could not cre Cir.1974). Kyle that asserts under Illinois property Kyle’s position ate a interest as a Miller, subsequent ease law to Austin and probationary Fleury Clay teacher. See ton, when the pro termination does not Cir.1988); Portch, vide the true 1399, 1405 reason for a nontenured teach Patterson dismissal, (7th Cir.1988) er’s (noting property dismissal void. The interest for 1. Prior P.A. amendment under The "Education Reform” amendments made during Special § 24-11 of the Illinois School Code the 1997 Session of the Illinois Assembly period "Any General reduced the notice employed any teacher who has been days, probationary from 60 to 45 increased ‍‌​‌‌​​​‌​​​​​​‌‌​​‌​‌‌‌​​‌‌‌​​‌​​​‌‌‌​​​‌‌​​​​​‌‍the probationary district as a fulltime teacher for a period years years two to four from for certain period 2of consecutive school terms shall enter teachers, newly-hired and made various other given contractual service continued unless changes § January 24-11 effective stating specific written notice dismissal appeal. none relevant to this mail, therefor, by receipt reason certified return requested by employing board at least 60 Act, § Aсcording Open Meetings 2.06 of the 2. days period.” before the end of such 105 Ill. public keep "All bodies shall written minutes of added). Comp. (emphasis Stat. 52. 4-11 meetings, open all their whether or closed. Such “ any term ‘teacher’ means or all school district include, meetings shall but need not be limited employees regularly required (3) to be certified un summary to: ... a of discussion on all mat- relating deliberated, decided, der law to the certification of teachers.” proposed, ters and a provision only applies Id. This to school Comp. districts record of votes taken.” 5 111. Stat. 500,000. population with a less than Id. 120/2.06. claratory judgment requires that that “the law termination process purposes due ¶ Compl. granted, null void. Am. If for when the criteria ] substantive establish[ interest”) conceivably judgment might such result deprived of the plaintiff could be Kyle appears to Kyle’s becoming tenured. added); Bd. Educ. Cleveland cf. have all of the conditions for ten satisfied Loudermill, except “requirement” (1985) (“[T]he ured status L.Ed.2d 494 timely notice of be not receive a dismissal provides that certain Clause Due Process probationary period. of his fore the end liberty, proper rights—life, substantive 1993). (West Comp. 105 Ill. Stat. 5/24-11 except pursuant deprived ty—cannot be procedures. The constitutionally adequate however, claim As a under procedure are categories of substance scruti argument does not survive close distinct.”). develop not Kyle does claim ny. that the de It amounts have estab in Illinois law since Miller ments prevented Kyle acquir fendants have from teacher can be probationary that a lished ing property perhaps This right. misconduct, only so it still true fired ordinary deprivation language, but sorts property lacks a probationary teacher it is a cause of action under job in his for Due Process Clause interest It good reason. would tend to erode purposes. deprivations substan distinction between by Act Open Meetings rights guaranteed confers tive Constitution Whether an un deprivations procedural Process of interests rights for Due Clause substantive law, of of a heart question to be a first der state distinction purposes seems See, jurisprudence. e.g., ap- courts Due Process Clause impression among the federal of Loudermill, 541, but, 470 105 S.Ct. peals, case of Illinois U.S. at least 1492-93; Apfel, act, question. There is Shvartsman it is not a difficult (7th 1196, Cir.1998); language Open Kim Constr. nothing in the Meet- Trustees, 1243, 14 1246 any Co. v. Board ings Act that indicates such substantive of Cir.1994). procedurally-flawed firing A pub- termination of Illinois’ limitations on the employee may a have the employees. Kyle probationary has neither cited ease of lic depriving employee oppor presented legal analysis suggesting effect of of an law nor (tenured right tunity property right a attain Lacking tenure in his a otherwise. status), right position, Kyle property property since that does former had no inter- but securely belong[ not to the em entitling process “presently him to due under the ]” est LaCroix, 207, ployee, Amendments. Cornelius v. Fifth and Fourteenth Pierce, 1127, Cir.1988), opportunity 210 loss of Jungels v. 825 1130 deprivation of a property is not a acquire “The right. constitutional Fourteenth firmly that proce is so established It prop procedural protection of Amendment’s requirements alone be the dural cannot basis erty safeguard security of inter is a of property right that for a we consider another already person acquired has ests that a Kyle’s position. possible interpretation of Roth, specific Regents Board benefits.” construed, Kyle’s argument Charitably real 2708, 2701, 33 408 92 S.Ct. U.S. procedural laps to be that because of seems (1972) added). L.Ed.2d 548 termination, under Illinois attending es said, really Supreme not has howev law he was terminated. There Court teacher, er, fore, meaning he has it that “the normal of entitlement become tenured right person or for which a failure to offer him a includes a benefit was defendants’ year deprived qualifies, depend upon wheth for another him does contract adju right acknowledged has constitutionally-protected property right: er the been of a Estate Drill position Plaintiffs dicated.” Cowart Nicklos “Since renewed 2589, Co., year, ing operation of for the 1996 school law ¶ (1992). 2595, fact, Although Es fully Compl. Am. 120 L.Ed.2d In tenured.” 1983, § Kyle’s pendent wrongful law for tate of Cowan did not involve state claim Roth, seeks, things, leading property among a de- Court cited case termination 1983, whether, express interests and as for this We no view under Illinois law, implications Kyle statement. Since the would have been entitled to tenure if, pronouncement law, Court’s in Estate Cowart notice, under Illinois he had no unclear, litigation, any, notice, are as what amounted no of his dismissal. Educ., an additional basis for our decision we will 422, See Donahoo v. Board 413 Ill. Kyle’s argument already (1952); Burns, consider that he 109 N.E.2d 787 5 Ill.Dec. at operation tenured teacher 362 N.E.2d at 355-56. “qualifies” of Illinois law. Open Act, Under Meetings any has not Illi may referred us court declare “null and void final establishing nois case that a notice of dis action taken at a meeting closed in violation probationary missal to a 120/3(c) (West teacher is defective Comp. this Act.” 5 Ill. Stat. 1997). provides if the notice a false reason for the only This is the circumstance fact, dismissal. Illinois courts have Open indi which the Meetings Act authorizes in purpose requiring specific cated that the validation of an action noncompliance. reason is “to enable the teacher to refute the Part of Meeting the Board here was conduct Howard, 133, charge.” 112 Ill.Dec. at 513 ed in a closed session. opportunity to 547; N.E.2d at see also request any remedy Wade Granite Open under the Meet Community Act, Unit ings however, Sch. Dist. No. 71 Ill. expired days after the App.2d (Ill.App.Ct. 218 N.E.2d Meeting. Ill. Comp. See 5 Stat. 1966). 120/3(a) (West 1997); While dicta Burns v. Board Paxson v. Board Education, 882, Educ., Ill.App.3d Ill.Dec. Ill.App.3d 213 Ill.Dec. (Ill.App.Ct.1977) 362 N.E.2d sug (in.App.Ct.1995); N.E.2d gested specific reason must “be Verticchio v. Divernon Community Unit truthful,” Supreme the Illinois Court subse Sch. Dist. No. Ill.App.3d quently (Ill. clarified that the 738, “essence” the Ill.Dec. 555 N.E.2d requirement permit was to App.Ct.1990). teacher to con But see Zoning Safanda grounds test the for dismissal. Appeals, 687, See Grissom Bd. Ill.App.3d Eduс., (Ill. Board 75 Ill.2d 26 Ill.Dec. 149 Ill.Dec. 561 N.E.2d 414-15 (1979). App.Ct.1990). N.E.2d If Kyle the original filed his com requiring explain reason for plaint the Board to its the district court on November permit action is to the teacher to contest the more than six months after the March explanation, providing Board’s then the meeting. Board Here we are con teacher an inaccurate reason does not sidering Open Meetings under the Act time limit purpose. any event, mine this In Kyle’s purely as a matter of Illinois law—to deter argument that automatically qualifies he preliminary for mine as a Kyle matter whether tenure cannot succeed under the was process. Illinois even entitled to due We are School pro Code. “Since the teacher has no point considering not at the Kyle whether right appear cedural employer before the deprived process—a wаs of due constitutional board to question the question governed by reasonableness or that would be a two- dismissal, limit, truthfulness of the year Kyle reasons” for his if time has otherwise stated Illinois courts will not challenge entertain a a claim. Dep’t See Kalimara v. Illinois Corrections, Cir.1989); the reasons unless “the reasons on their 879 F.2d 276 clearly arbitrary are or McDonough, without substan also Farrell v. face Burns, (7th Cir.1992). tial basis in fact.” 5 Ill.Dec. at present pur 280-81 So added). 362 N.E.2d at 356 poses Open The Meetings the shorter Act statute explanation hardly Board’s so binding Kyle.3 deficient. of limitations is on Under 3(a) occur, Open Meetings may 3. Section of the may bring Act reads in anee a civil ... action part: relevant prior days meeting alleged to or within of the provisions or; Where the of this Act are not com- to be in violation of this Act if facts concern- with, plied probable or where there is cause to ing meeting are not discovered within the provisions believe that the of the Act will not be 60-day period, days discovery within of the with, complied any person, including the State's Attorney. a violation the State's Attorney county noncompli- in which such conspirators therefore, Kyle which the deemed ad- law, is time-barred tivities Illinois interests____” Open their Yet claiming through from tenure verse Act, possible. sparse complaint that were in his does he Meetings nowhere even point any protected this their that he uttered The raised mention defendants brief; reply ignored any protected it his brief. Kyle speech engaged or conduct already he had Kyle “activity” allegedly he fired. has not established or which was by operation of Illinois him qualified for tenure The who advised that his board member law. “political advocacy” was for termination apparently say “whose” rea- reasons did Kyle alleges that appeal, In his glaring gap This in the sons. newly him a to offer failure speculation only total alterna- leaves Superintendent “Assistant position of created up tive for the court to come with set of Resources and Public of Human and Director justifying That is not the court’s relief. Kyle he Relations,” claims was for which dismissal, job. To avoid for a fully property rights. his qualified, violated put Amendment violation must at least First terminat Board resolution He notes that the specific on notice that some defendants arising for ing provided him that vacancies speech conduct led to the term, year one school within termination. term, beginning of that would ten employees who terminated were dered to particularly This is not a cumber fill not raise this qualified to them. did assignment. “In some order to establish а court—indeed, argument before the district claim, the facts First Amendment retaliation hardly develops it in his brief before this (1) alleged in the must show that right his court—so he has waived raise plaintiffs engaged which See American Nat’l Bank & appeal. constitutionally protected under the cir Auth., Transp. Regional Trust Co. (2) cumstances, defendants retaliated Cir.1997). 438 n. 17 For the against them because it.” Gustafson reason, Kyle’s argu not consider same we do Jones, court, ment, also first raised before court concluded that com district a claim for violation of a states provide any allegations plaint factual motion liberty reviewing interest. the court and the which would alert defen claim, we dismiss for failure to state a will claim, as to the nature of his and so dants make factual plaintiff allow a additional As previously dismissed the claim. men see, allegations appeal, for the first time on tioned, we review the dismissal com e.g., Passenger v. R.R. Hrubec National novo, well-pleaded plaint accept de and the (7th 962, Cir.1992), Corp., F.2d 968-64 981 true all infer facts as and draw reasonable issues, but we will not entertain new plaintiff. McTigue ences in favor of the v. Corp., Motors 977 F.2d Dawson v. General (7th 381, City Chicago, F.3d 382 60 Cir. * (7th Cir.1992). 369, n. 372 1995). Fourteenth) (and Amendment(s) II. First Under the federal rule notice “‘all is a Kyle pleading, require claims was terminat the Rules short advocacy plain reasons” and statement of claim that will “political ed for and and ‍‌​‌‌​​​‌​​​​​​‌‌​​‌​‌‌‌​​‌‌‌​​‌​​​‌‌‌​​​‌‌​​​​​‌‍conspired together give the defendant fair of what the that the defendants and notice position grounds upon him of claim is and the deprive with others to and positions political “for and it rests.’” Leatherman v. Tarrant prospective advo which cacy perceived advocacy County Intelligence аnd Coordina- political ae- Narcotics 120/3(a). meeting Comp. Although concerning there is a facts are not discovered Ill. Stat. among Appel 60-day period,” conflict the districts the Illinois not effective until within private party’s regarding a late Court lenge when chal January inapplicable and so in Open timely, Meetings Act is we are 3(a), construing § does en- the Illinois cases persuaded by analysis the careful issue meeting large the circumstances under which See 213 at

Paxson. Ill.Dec. N.E.2d challenged. can be qualification, at The addition of "if 1315-17. Unit, at The defendants assert tion 507 U.S. S.Ct. has not Gibson, any facts give “identif[ied] which would Conley v. (quoting notice of (1957) (footnote Appellee’s defendants his claim.” 99, 103, 2 L.Ed.2d 80 City 21. Doherty Chicago, brief at added). omitted)) and citation (7th Cir.1996), specifically ad- given, For fair to be “a must post-Leatherman our dressed standard of re- oрerative the. least facts ‘include ” cases, rights view of civil and concluded that bases his claim.’ Lucien v. plaintiff which a allegations “It is insufficient to bald make (7th Cir.1992) Preiner, 967 F.2d procedures that state against were biased Service, Towing (quoting Rodgers Lincoln litigant on the political basis of affiliation.” (7th Cir.1985)). Inc., A 771 F.2d Doherty’s Kyle’s complaints plead both facts; plaintiff plead plead “need not he can conclusions; they but fact plead the mere [However,] conclusions. conclusions conclusions does not them render insuffi- provide least must the defendant with insufficiency cient. Their comes from the of the claim.” minimal notice Jackson give fact that the conclusions fail notice of County, Marion “something the claim: than more a concluso- issue we review whether ry Moreover, allegation necessary.” Id. pleaded “sufficient allow [have bеen] facts ability investigate the defendants’ to even grava the district court to understand the by complaint. claim is frustrated plaintiffs complaint.” Doherty v. men of the example, For the Morton School Board can- Chicago, 75 F.3d Cir. its if they not ask board members were 1996). conduct, speech, aware of engaged Kyle—because in by association Leatherman, occasion Before alleged. none is How can the School Board apply stringent we would more standard speech engaged determine whether the cases; pleading rights for notice civil we protected, was not they when longer judge Kyle’s no do We so. speech, any, Kyle have idea to what no apply in the same we standards would referring?' “There must sufficient cases, reach non-civil and would pleaded allow the court 'and the defen- were, example, negli gravamen same result if it dants to understand the plaintiffs complaint.” gence dispute. By way or contract of illus Id. tration, Sutliff, Compa Inc. v. Donovan Probably most the eases similar to nies, Inc., Cir.1984), a Kyle’s Melby, 901 are Barkoo v. F.2d 613 complaint alleged “predatory pricing” and (7th Cir.1990), Boles, Fogarty “price-fixing” we held that the but (3d Barkoo, Cir.1997).. employee an violations, did not state a claim for antitrust publication after was terminated but rather for fraud. We commented newspaper that “[t]o article. We held the familiar refrain motion to dismiss alleges employers Barkoo her extent “ cases, ‘a should not be dismissed against they thought retaliated her because appears for failure a claim to state unless it engaged pro she was First Amendment beyond plaintiff prove doubt the can no public concern, speech an tected issue of of set facts in of his claim which reject allegation the this we notion that ” relief,’ Conley,

would entitle him to requirements her claim brings within the of U.S. at at “has never words, § 901 F.2d at 619. In other it 1983.” literally.” Sutliff,. been taken enough to allege is not mere retaliation due 654. the Obviously .“set of facts” has to be motive; improper must to an .there be an plaintiffs, figment the a of someone else’s protected allegation of conduct. There was imagination. plaintiff The cannot state a rights speech no of free “when violation the conclusion, “by attaching claim a bare issue Id. In never occurred.” Fo apply facts he narrates.” Id. We the same garty, public a school teacher was terminated Kyle’s complaint standard to as did in principal’s we due to the mistaken belief that the called, Sutliff; alleges the he press. civil violations had teacher the Third give, speech, must “in оf some notice of the actual claim. Circuit held that the absence extreme, Kyle’s identify his or, speech, there relief.” Id. to intended failure protected speech analogous cogniza- or conduct is to constitutional violation has been no Lucien’s “bald assertion” that the letter con an asserted 1983 based on ble under section lies. Neither the Morton School tained part of on the defendant.” ‘bad motive’ to a Board nor Preiner would be able Fogarty differs from While F.3d at 890. craft meaningful response complaint. to such a Fogarty specifically dis- Kyle’s in that case Sidney Pipefitters S. Arst Co. Welfare any speech, Fogarty engaging in claimed Fund, 25 n. 5 Educ. F.3d Cir. proposition gravamen of a stands for 1991) (“a only complaint set a need out speech. Here First Amendment claim generalized which the statement polit- offacts from аllege something than more has to pleading. responsive can a defendant craft put to the defendants ical innuendo order Wright A. see also 5 Fed.R.Civ.P. Charles his claim. on notice of Miller, R. and & Arthur Federal Practice examples replete with of Our case law ed.1990).”). (2d Procedure basis a complaints the factual which omit Albiero, Doherty, and Lucien are not iso claim, therefore, give fail to fair notice of Rather, exceptions in this it circuit. lated upon. rests For ex- grounds the claim appears reporters brimming are that the law Kankakee, ample, Albiero v. complaint a with instances where failed (7th Cir.1997), complaint a F.3d claim of fair notice state a because the lack alleged “conspiracy,” but not elaborate a did operative gravamen facts or the of the any allegations. or We held contаin See, e.g., Talbot v. Rob statement relief. lax of notice that “even under the standards Co., Distributing ert Matthews F.2d allega- pleading rules” this under the federal (7th Cir.1992) (“The federal notice liberal give equal notice of an tion was insufficient to pleading by the federal rules re allowed protection claim. Id. at Albiero did not operative quires complaint include against he was be- claim that discriminated claim.”); which a his bases race, sex, or affilia- cause of his or Liquid Carbonic Industries Panaras tions; allege that had did not others been he (7th Cir.1996) (“While Corp., than has. In the treated better he absence generous notice-pleading federal for a allows Albiero notice of on what basis was reading complaint, in order resist protection, his equal denied dismiss, must at motion to state a claim. Just Albiero’s out least set facts sufficient ‘outline give was failed to insufficient because claim.”); adumbrate’ basis Chaver party opposing court fair notice as to Co., Pipe iat v. Line Williams claim, protection equal the nature (7th Cir.1993) (“It origi true that the give complaint fails to fair notice as to theory nal Rules of Federal Civil any protected engaged conduct whether plaintiff ought Procedure whatsoever, of his termi- and what basis permitted to searching fumble around nation was. meritorious claim within the elastic bound Preiner, 967 Lucien of a until the final aries bare-bones (7th Cir.1992), plaintiff seeking 1983 pretrial judge lawyer conference. No damages requested declaratory in- age takes com crowded dockets relief, junctive on the basis that letter sent ...”); pletely seriously Perkins Silver to a Prisoner Review Board Cir.1991) defendant stein, 939 F.2d However, (“While lies. Lucien failed to contained original make in them clear identify anything in the letter that was false are, they complaint what their claims fail misleading. Id. We that Lucien or even held identify grounds upon the their claims which identify do, required to at least the lies in they even are based. This must under 8(a).” the letter to state a claim. “Lucien’s failure pleading the liberal notice of Rule (footnote omitted.)); anything more than the allege that defen- and citation and McTi letter, stating gue City Chicago, dant lied her without even Cir.1995) (“The however, are, simply enough complaint, what lies not is defi those injunctive declaratory cient because it fails to include a factual basis state a claim or 41, 47, particularity 99, 103, with the bias that U.S. to describe L.Ed.2d 80 (1957). plaintiff alleges. Although Fed.R.Civ.P. the require pleading, not detailed factual

8 does plaintiffs must direct the assertions still de III. Claim of conspiracy to interfere .with plaintiffs fendant to the factual cause civil аlleged injury.”). belaboring Without Count complaint III al more, point any Supreme Court and oth leges conspired that the defendants with un ‍‌​‌‌​​​‌​​​​​​‌‌​​‌​‌‌‌​​‌‌‌​​‌​​​‌‌‌​​​‌‌​​​​​‌‍ similarly recognized courts er circuit have injure Kyle named individuals to in retalia requirement give that a must political advocacy, tion for his in violation of of the nature of the action. fair notice 1985(3). § 42 U.S.C. The district court dis Miller, Wright Arthur R. Charles A. & Fed grounds, missed the on.two one of § eral Practice and Procedure 1216 n. 20 & racial, “allege which was that it (2d Supp.1997), n. ed. 1990 & text political Smith, conspiracy,” per Grimes v. accompanying (collecting from cases Su Cir.1985), aff'g First, Second, Third, preme Court and the (N.D.Ind.1984) J.). F.Supp. (Posner, Fifth, Sixth, Seventh, Eighth, Tenth and appeal jury Grimes involved an fiom a trial Appeals). Eleventh U.S. Circuit Courts by Judge, conducted our Chief sitting by sought Had the defendants a more definite designation in the court. jury district A 12(e), Rule of filing statement under instead plaintiffs returned a verdict in favor of the 12(b)(6) dismiss, perhaps Kyle motion to 1985(3). § for violation of The district court specifically would have identified the granted losing defendants’ motion for a or association he claims caused the judgment verdict, notwithstanding the be perhaps retaliation. Or he would have de- cause on the facts of the ease there was no protected performed, he scribed conduct “ ‘racial, class-based, or ... otherwise invidi activity and at least indicated which motivat- ously discriminatory animus behind the con Despite ed the defendants to terminate him. Grimes, action,”’ spirators’ F.Supp. request of a formal for a absence more (quoting Breckenridge, Griffin statement, Kyle definite was alerted to this U.S. 91 S.Ct. 29 L.Ed.2d deficiency his before he filed an (1971)), and this court affirmed on that complaint, amended but failed to address it Although basis. Grimes did not involve a complaint. in his amended This is not a case 12(b)(6), motion under Rule it is clear from plaintiff tripped up by where has been reasoning opinions of both that a Grimes technicalities,” rather, plaintiff “mere but 1985(3) § allege under must a con gravamen complaint.4 has omitted the of his spiracy motivated a racial or class- Kyle’s complaint give fails to fair notice to based animus. opposing party the court and the n Kyle requirement contends that operational complaint. By simply facts of his applies only some class-based animus to con- reciting the rumor that he was terminated spiracies private persons, reasons,” conspiracies “political advocacy he fails (Kyle involving allege state action. does not identify any activity part, on his even terms, conspiracy a violation of 1983 from a under general triggered the most that his law.) termination, therefore, points, color of He out the cases he has failed to give proposition the defendants and the court “fair cited the defendants for the 1985(3) animus, ground requires of what the claim is and the a class-based Gibson, Grimes, Conley including private conspir- which rests.” all involve argued including investigation discovery.” 4. Nor can it be fair notice ther As has plaintiff. of the claim is burdensome on the Un- alleged retaliatory termination in violation of der Rule 11 of our dure, Amendment, Federal Rules of Civil Proce- (or attorney) the First must plaintiff plaintiff's attorney is obli- inquiry allegation have made an into this before gated "inquiry to make an reasonable under the filing complaint. Having inquiry, this made certify allegations circumstances” and hardly require it is burdensome to or, evidentiary support, specifical- made "have ly de- share his conclusion the court and thе with identified, likely evidentiary so are to have fendants. opportunity after a reasonable for fur- 458 Intelligence and

acies, clear from the text of the Narcotics Coordination it is and that Unit, 163, 168, 113 S.Ct. is 507 U.S. animus neces that no class-based statute (1993) Conley v. (quoting 122 517 L.Ed.2d state action. sary conspiracy if the involves Gibson, 99, 103, 2 78 legal to no references Kyle’s brief contains (1957) (footnote omitted)). 80 position, nor it L.Ed.2d authority does supporting “ heightened from applying a test derived a ‘showing argument contain a substantive rights complaints pleading standard for civil despite supporting a lack of why it is sound ” claim, Kyle’s major to First Amendment authority.’ v. New York Ins. Mathis Life Cir.1998) (7th ity demanding rights plain a civil Co., is more of (per 548 133 F.3d curiam) requires. Rule 8 this is tiff than Because (quoting Village v. Pelfresne Leatherman, (7th respectfully inconsistent with I F.2d 1023 Bay, 917 Cir. Williams 1990)). dissent from the dismissal of Count II. Kyle’s sup Despite allusion meaning of the text of posedly obviоus Kyle’s complaint requirement satisfies 1985(3), language contains no his brief Jones, F.3d v. 117 described Gustafson The issue is forfeited. Id. from that text. (7th Cir.1997), allege decision, an alternative basis for our As' against that retaliated the defendants (7th Friske, v. 754 F.2d Munson constitutionally-pro plaintiff on the basis of Cir.1985), directly contrary on point, is and Gustafson, 117 F.3d tected conduct. See v. Kyle’s position. See also Lesser Braniff that expressly alleges 1018. The Cir.1975). (7th Airways, 518 F.2d Kyle Kyle one told that of the defendants argument Finally, conceded oral that conduct, Kyle’s dismissed a claim if he did not state under support can an inference of retalia this counts, conspiracy he state a also id.; tion. see also McGill v. claim. Cir.1979). Educ., (There majority’s charac is no basis for the Affirmed. “rumor.”) terization of the statement a City CUDAHY, Judge, Doherty Chicago, 75 concurring in Therefore v. Circuit Cir.1996) (“Ms. Doherty part. F.3d part dissenting alleged nowhеre has that the decisionmaker repeatedly emphasized have that We knew Demo of her nonaffiliation with the tiny “apart 9] from and a handful [Rule party____”), inapplicable. For this cratic is judicial supplements arguably appropriate reason, Preiner, v. same neither Luden it, a a suit federal court need (7th Cir.1992) curiam), (per nor F.2d 1166 facts; plead can plead conclusions.” Kankakee, Albiero v. F.3d County, Jackson Marion (7th Cir.1997), majority’s comparable. is The also, (7th Cir.1995); e.g., see Hutchinson suggestion consists of Spink, 126 F.3d assertion,” maj. op. no more than “bald pleading requirement is no stat “[TJhere itself, no than a respectfully, more ing ‘facts sufficient to constitute cause of assertion; ignores aspect bald it action’____” Durning, Dioguardi complaint’s general as well as the (2d Cir.1944) (Clark, J.); provide ized context statement facts Assocs., Homeyer Stanley Tulchin also string majority’s claim. Thus the (7th Cir.1996) (“[The plaintiff] Talbot, Panaras, Chaveriat, Per citation to required plead was not evidence to McTigue inapplicable. kins “If some allegations; her she was not even (and do) opinions say of our some that a suit case.”). required theory include facts, plead must be for failure dismissed recently Supreme has confirmed Court scrutiny usually apparent on close it is against municipali that in civil actions grounds “ the real for the dismissal are differ ties, require ‘all"the Rules ‘short and Jackson, ent. ...” 66 F.3d at 153. plain give statement of the claim’ that will Although suggested we that a fired plain the defendant fair of what have grounds upon public employee’s complaint to state tiffs claim is and the which fails ” “allege[s] County Amendment claim unless he rests.’ Leatherman v. Tarrant First

459 J.) (Cohen I) (cited finding that authority Musso); that could as facts concern,” Tech., 658, v. public on a matter of Cohen Illinois Inst. speech is 581 F.2d of (7th Cir.1978) (Cohen IT) 1018; 663 Gustafson, (explaining 117 F.3d at see also Cald ra (7th Elwood, 670, tionale of I Cohen and Cohen II “[s]ome 959 as well v. F.2d 672 particularized demonstrating Cir.1992), a constitu in defendants cite no case which deprivation tional are needed to sustain a upheld complaint’s we have dismissal for Act”); cause of action Rights under the Civil Caldwell, that reason. which took this crite Shaw, see 1205, also Jamieson v. 772 F.2d 613, Melby, rion from Barkoo v. 901 F.2d 617 (5th Cir.1985) J., (Jolly, 1214-15 dissenting) (7th 1990)—acase in which the issue was Cir. (citing example Cohen II as heightened sufficiency presented of the evidence at eases). pleading applied standard 1983 trial, complaint—did not the dismissal of a Leatherman, In the wake of necessary it is rely on it. reversed the dis Gustafson pleading justi consider whether a standard complaint. missal of a fied the claim’s status as a cause of action complaint pleads If a facts that demon improperly under 1983 great “demand[s] that is not on a strate issue specificity” er level of than pleading notice concern, public plaintiff matter of will of Educ., requires. v. Duda Board 133 F.3d court, pleaded have himself out of course cf. (7th 1054, Cir.1998); 1057 see Man Sherwin Crest, Village Lanigan v. East Hazel Nursing McAuliffe, Ctr. v. 37 F.3d (7th Cir.1997), F.3d and when we (7th Cir.1994). public employee’s have dismissed a First A properly grant motion to dismiss is not complaint, gener Amendment retaliation it is beyond ed unless it is doubt that there could See, ally e.g., on this basis. Khuans v. justifying be no set of facts relief. The (7th School Dist. 123 F.3d majority’s report demise, principle’s of this Cir.1997); Oerkfitz, Lashbrook v. 65 F.3d maj. op. greatly see exaggerated. (7th Cir.1995); 1349-50 Griffin See, e.g., Kelley Catalysts, Crosfield (7th Thomas, 929 F.2d Cir. And the 1991). Lacke, Gray In 885 F.2d attempted per defendants have not even (7th Cir.1989), uphold we did the dismissal of suade us that this criterion is satisfied. Nor allege bеcause it they presented argument appeal have an private alleg contents of conversation that provide fails to them with edly provoked termination. claim; fair First Amendment explained way We have no “[w]e insist, they simply argument, without knowing whether the conversation touched Rule 11 entitles them to that would “facts public aon matter of concern.” Id. give the defendants notice of the claim.” Br. stating that he was told he was fired for added); Defs.-Appellees (emphasis “political reasons,” advocacy has maj. op. appeal at 457 n. 4. An essentially alleged that he was fired 11(b)(3) inquiry requirements of Rule speaking public concern; on a matter of so Leatherman, in Supreme also made but the Gray, suggestion where there was no evidently argu Court did not consider public the discussion a matter-of involved Leatherman, persuasivе. ment 507 U.S. concern, easily distinguishable. 113 S.Ct. at 1162-63. “Rule 11 moreover, analysis Gray, ground ap pleading’ neither modifies the ‘notice heightened pleading ed standard proach requires of the federal rules nor coun imposed civil actions sometimes this prove sel case advance of discov prior Gray, circuit to Leatherman. See 885 ery.” Powerlifting Frantz v. United States (“[B]ecause at 411 Gray failed to make Fed’n, Cir.1987); 836 F.2d allegations regarding sufficient this Corp., see also Cooter & Gell v. Hartmarx factual incident, properly the district 384, 406-07, 110 2447, 2461-62, court dismissed claim.”) added); (1990); Clark, Musso v. Su L.Ed.2d Donaldson riano, (7th Cir.1978) (cited ‍‌​‌‌​​​‌​​​​​​‌‌​​‌​‌‌‌​​‌‌‌​​‌​​​‌‌‌​​​‌‌​​​​​‌‍(11th Cir.1987) (en 1551, 1561 banc). authority by Gray); require plead Cohen v. Illinois Inst. Rule 8 does not Cir.1975) Tech., (Stevens, majority requires, sample F.2d 818 the facts the as the recovery facts to the Rules essential under appendix in the Federal forms all theory.”). legal demonstrate: the of Civil Procedure appen in the of the forms included [O]ne majority’s that the Board The concern Rules of Procedure Civil dix Federal a meaningful be unable to “craft re would money of owed for sale states a claim for maj. op. illusory. at is The sponse,” states, allegation goods. substantive The solely budget claims it fired for plaintiff “Defendant owes entirety, in its reasons, comprehen to be a ary which seems _dollars by sold goods and delivered event, protection rebuttal. the sible Decem plaintiff June 1936 and between ability the Board’s to defend itself is app., Form 5. Fed.R.Civ.P. ber 1936.” lodged elsewhere in the civil rules. Ear See state plaintiff using this form need not The Co., ly v. Bankers & Cas. 959 F.2d Life were, goods the their what complaint in the (1992). 12(b)(6) merger of The Rule delivered, they or on were quantity, where 12(e) by majority, suggested Rule the date the stated six month what within 456-457, maj. op. perhaps at to a is best left place. delivery took Presum period the 12. formal of Rule United amendment Cf. if stated are actual ably, any of these facts 97-3645, Guy, slip op. at 3-4 States No. defendant, be ly he would unknown to the 1998). April The Cir. district court for a proceed either a motion entitled Kyle’s original complaint never indicated that statement, more definite see Fed.R.Civ.P. if it were amended would dismissed not 12(e), discovery through the devices majority along suggests, the lines the as through Rules made available apparent with a motion would have been true definite statement. 2 James (7th for more See 141 F.3d Winfrey, Cook al., Moore et Moore’s Practice Wm. Federal Cir.1998) added); Bartho see also (3d ed.1997). Further, only the 12.36[8] A.G., v. Reishauer F.2d let following filing the proceedings the complaint The identifies complaint are before us. Cros amended See firing complaint, Kyle’s as the basis the 1204-05; Catalysts, at 135 F.3d Lubin provides adequate no which the defendants field Co., Chicago Title & Trust case, claim—certainly in this tice of (7th Cir.1958); Slomer, Ericson v. that which the defendants do not contend (7th Cir.1938). unpro they Kyle on the terminated basis advocacy. tected only apparent complaint is it from Not struggles recognized legal theory that “some exists majority The draw inferences that, true, defeat which relief could be accorded” the complaint from the would claim, 455-456, ah, maj. plaintiff, supra, Moore et at but we James Wm. see op. 12.34[1][b]; complaint alleging gravamen plaintiff’s must construe and ad could not be clearer: it is that he engaged that he conduct only possible not in activi vocacy. engaging if this is was fired retaliation for Even inference, ty protected not the First Un because it is an unreasonable Amendment. one, sample plaintiff pleading, entitled it. Mallett as the' Rules’ der is show, gravamen Div. Vocational Rehabilita forms Wisconsin tion, Cir.1997); 1245, 1248 particular theory, legal Fed. be a fact or a cannot 8(f). 961; Homeyer, gravamen R.Civ.P. The also describes see alleged grievance. grievance the relevant is the Here the conduct defendants Kyle’s alleged injury. plain; more the district court nor the the source of No is neither 12(b)(6) they required stage. suggested rule defendants ever could “[A] presumes general allegations plaintiff’s ... understand the nature of al motion not only specific leged grievance—there the defen those that are neces embrace unsupported sary Lujan the claim.” v. Na assertion that Rule dants’ Fed’n, factual But specific 110 entitles them to notice. tional Wildlife (1990); only grounds indicate 111 L.Ed.2d 695 need (“The Albiero, complaint, specific 122 F.3d at 419 factual analysis plead- misconception allege majority’s grounds. is that a must unequivocally require plaintiff] does not to do “[a] [the states more ing, which facts,’” far.”) (internal plead and then plaintiff ‘need not than he has so done citation omitted). “whether ‘sufficient facts II, turns to consider respect With to Count the de- ” maj. pleaded,’ op. at [have been] arguments justify fendants’ judgment do not consistently. may prove apply difficult pleadings. on the majority’s Finally, it not clear the fact- join opinion I court’s full with the help pleading requirement will the courts II, exception of Part from which I respectful- pleading recognize meritorious claims at ly dissent. In stage of a case. we noted Gustafson difficulty balancing employee’s free speech against the interests of the interest pleadings

public employer on the basis of the 1019; Gustafson,

alone. See (Diane Khuans, at 1021 P. J.,

Wood, concurring). Even a determination preliminary public issue whether MATHEWS, individually Edward H. employee’s speech a matter of “addresses similarly all on behalf of others hоwever, concern,” requires an public assess situated, Plaintiff-Appellant, form, “content, of a ment of the and context statement, given as revealed the whole Myers, record.” Connick U.S. PLAN SEARS PENSION n. 147-48 & 103 S.Ct. Sears, Company, Roebuck & (1983) added). An L.Ed.2d 708 Defendants-Appellees. screening general provided initial facts inevitably may pleadings difficult and No. 97-2938. may unreliable. Such a screen not be the Appeals, United States Court “promot[ing] jus best means of ends Seventh Circuit. tice,” Wright R. 4 Charles Alan & Arthur Miller, Federal Practice and Procedure Argued Feb. 1998. (2d ed.1987), if Leatherman al even May Decided goal. us more freedom to consider this lowed Leatherman, See U.S. Rehearing Suggestion ‍‌​‌‌​​​‌​​​​​​‌‌​​‌​‌‌‌​​‌‌‌​​‌​​​‌‌‌​​​‌‌​​​​​‌‍Rehearing “public Applying at 1163. concern” En Banc Denied June 1998.* supplied test on the basis of facts at the pleading stage would be no easier for a free claim. Balton v. Mil association

waukee, (7th Cir.1998). 133 F.3d 1036

In the case of a First Amendment retalia- appear

tion it does not that we upheld

have ever a motion to dismiss

failure state claim because

allege indicating public employ- speaking public

ee was on a matter of con-

cern, complaint suggested light such matters. involved

Leatherman, majority’s dismissal on the plead

basis of failure to sufficient facts is Lanigan,

unwarranted. See 110 F.3d at 480

(“The allegations against Village come ‘boilerplate vagueness.’ to the level of

close

However, recognize we that Leatherman

* petition. participate Joel M. Flaum did in the consideration of the Hon.

Case Details

Case Name: Charles Kyle v. Morton High School, District 201, Margaret A. Kelly, Judy Thompson

Court Name: Court of Appeals for the Seventh Circuit

Date Published: May 11, 1998

Citation: 144 F.3d 448

Docket Number: 97-2081

Court Abbreviation: 7th Cir.