*2 MANION, LAY,* Before RIPPLE Judges. Circuit LAY, Judge. Circuit Black, obtaining Muriel D. default defendants, of the judgment against several magistrate appeals from an order failing to judge dismissing complaint for for denial of claim for state a Due Process rights under the Clause.1 * disposition parties case Lay, Judge The Circuit consented Donald Honorable P. Appeals Eighth judge. by magistrate Court the United States Circuit, designation. sitting by magistrate judge’s We vacate the order of uine issues of material fact existed regarding dismissal and remand to the district court for whether Black was confined because of racial proceedings opin- further consistent with this discrimination or in retaliation exercising ion. his First Amendment in complaining *3 Lane, racial discrimination. See Black v. (7th Cir.1987) (“Black I”).
I.
judge dismissed
the facts
decided that
a claim
The court
Justice.
failure
state
complaint for
point,
At this
make out a claim
granted.
did not
alleged
could
which relief
approxi-
right
judge also dismissed
the exercise of
magistrate
The
dis-
grievances.
the defendants.
mately
petition for redress
half
allegations
this
liberty
insubstantial
to make
not at
dismissed
court was
trict
to the courts
access
however,
denied
determination,
almost six
that Black
because
plain-
of time between
“period
because the
Black had
ago
court found that
years
retaliatory
activities
support
tiff’s
specific
“made several
*4
of
inference
a reasonable
precludes
I,
conduct
824 F.2d
charge.” Black
his retaliation
of
also dismissed
The
court
retaliation.”
observed:
example, this court
For
at 562.
process
due
was
that he
denied
Black’s claim
allegations are best illustrated
These
charges were levied
when false
with two
Black had
experiences. that
reasoning
being prosecuted
him,
that
against
perform
he tried to
officers when
in itself a
charges is not
fabricated
under
began in December
job
he
that
Finally,
process.
due
procedural
violation of
Sergeant Al
alleged
Black
that
1983-
allegations of
that
court ruled
him
prevented
Inman
dridge
Officer
First
of his
his exercise
retaliation
job by locking him in his
doing
from
allege personal
rights failed to
Amendment
performing
should have
cell when he
been
improper
or
the defendants
of
involvement
In addi
as a counselors’ clerk.
his duties
appeal, Black
On
racial discrimination.
tion,
that
the officers
claimed
when
a claim for
states
claims that
cell, they
of his
harassed
allow him out
did
process
and for denial of
retaliation
collecting in
him
prevented
him and
from
rights.
duty
request slips, a
that
mates’ counselor
job.
integral part of his
The activi
anwas
II.
Aldridge
In-
Sergeant
ties
Officer
of
outset',
it was
we note that
theAt
example
the treat
only
one
man
of
dismiss
court to
improper
the district
alleges
received be
that Black
he
ment
damages hearing with
a
claims at
of Black’s
the De
a
with
cause he filed
that
the merits
providing
notice
out
partment
Justice.
Quirindongo Pa
would be considered.
(1st
Morales,
16
added).
963
checo v. Rolon
allegations
The
(emphasis
same
Id.
curiam)
Cir.1992)
it
(holding that was
(per
pleaded in Black’s second
to dismiss
court
inappropriate for
district
doc-
the law the case
complaint.
Under
evidence,
en
complaint for lack of
trine,
may
ignore
not
the district
default,
notify
court did
try
Sullivan,
where
Key v.
decree. See
court’s earlier
(7th Cir.1991) (“The
to consider issue
court intended
gist
925 F.2d
liability).
is that once
case]
of the
doctrine
[law
expressly or
appellate court either
an
A Retaliation
issue,
implication
necessary
decides
subsequent
binding upon all
will be
Black’s decision
court dismissed
district
case.”).5
in the same
proceedings
against after
was retaliated
claim
he
suggests
law of the case
that the
applied
only
5. The dissent
employment discrimination
subject to
been
holding
not be
doctrine should
two-year period
of 1982
October
for the
any ruling concerning the retali-
Black because
complaint indicates
of 1984. Black's
November
stating
was dicta.
a cause of action
ation claim as
eight-
over an
harassed and beaten
that he was
court,
reviewing
grant
The Black I
period,
allegations are deemed
year
and these
defendants,
summary judgment
deter-
judgment entered
of the default
true because
genuine
of mate-
issues
existed
mined
there
against
Again, because Black
defendants.
implicidy
doing
held
so the court
rial fact.
appeal, we do not
this issue on
did not raise
plaintiff’s complaint
a cause of
stated
that the
reach it.
Catrett,
Corp.
477 U.S.
Celotex
action. Under
only
Not
district
court re
for the district court to dismiss Black’s claim
accept
quired
finding
this court’s
retaliation.
To
state
cause of action for
retaliation,
Black had stated a claim of
but
retaliatory treatment,
need
obligated
accept
the district court also was
“allege a chronology of events from which
alleged in
complaint.
as
all facts
true
may
Murphy
inferred.”
All of Black’s factual
are treated Lane,
(7th
Cir.1987)
(per
judgment
as true because a default
was en
curiam) (quoting Benson v. Cady, 761 F.2d
against
tered
the defendants. When a de
Cir.1985));
see also Cain v.
entered,
judgment
fault
in the
1139, 1143
Cir.1988).
n. 6
complaint may not be contested. See Thom
Wooster,
son v.
Reviewing
U.S.
the actions of the various defen
(1885);
8(d) dants,
L.Ed. 105
see also Fed.R.Civ.P.
as is outlined in more detail in the
(“Averments in pleading
respon
to which a
addendum,6 it is evident that Black has al
pleading
required
sive
... are admitted
leged continuous acts of harassment and
when not
responsive plead
denied
beatings since the time he filed an adminis
ing.”). Furthermore,
rule,
general
“[a]s
trative
establishes,
default
aas matter of
Justice.
Immediately after
filing
law, that
defendants are
liable
complaint,
administrative
and for the three-
*5
alleged
to each cause of action
in the com year period
it,
following
the defendants inter
plaint.”
Mucci,
United States v. Di
fered
assigned tasks,
with Black’s
withheld
(7th Cir.1989).
1488,
entry
1497
of a privileges, wrongfully confined him to his
not, however, preclude
default order does
a
cell,
wrongfully
issued false
party
challenging
sufficiency
from
against
tickets
Black. He was also confined
Prods.,
complaint. Alan Neuman
Inc. v.
hot,
days
for three
to a
flooded cell that had
Albright,
Cir.1988),
1392
been closed as unfit
habitation,
for human
denied,
cert.
493 U.S.
110 S.Ct.
107
where he suffered a heart attack.
(1989).
124
L.Ed.2d
suggests
The dissent
that Black’s com
light
previous
In
of this court’s
decision
plaint
given
should
I,
a narrow and restrict
Black
and considering
all
alleged
facts
ed construction.
complaint
true,
Supreme
in Black’s
are
Under
Court’s
deemed
we
holding
find without
recent
hesitation that it was
Leatherman v.
erroneous
Tarrant
for
County
the district court to
Intelligence
dismiss Black’s claim
Narcotics
and Coordina
—Unit,
of retaliation.
-, —,
tion
U.S.
113 S.Ct.
(1993),
however,
L.Ed.2d 517
B.
Complaint
The Second Amended
heightened pleading
apply
a
rule does not
to
Even in
Rather,
§
absence of the law of
1983 claims.
Rule 8 of the Feder
doctrine
case
we find it was erroneous
al Rules
Civil Procedure
applicable.
(1986),
S.Ct.
asserting
L.Ed.2d
claims and defenses that are ade-
reviewing
grant
summary
judg-
quately
on a
based in fact to have those claims and
always
ment
jury,
must
rights
determine whether the non-
defenses tried to a
but also
moving party
persons opposing
has adduced
sufficient facts to es-
such claims and defenses
provided
to
by
tablish its case. As the
demonstrate in
in Celotex ob-
the manner
Court
trial,
Rule, prior to
served:
claims and defens-
es have no factual basis.
pleading"
Before the
shift
“notice
accom-
Celotex,
liberal that Black’s is critical The dissent contrary to the dissent’s Additionally, and retaliatory certain categorized has three-year period existed time view that “Racial Discrimination” heading of under the racial discrimina- filing of a between This over “Retaliation.”7 under others retalia- the occurrence of sections of the com both the fact looks acts, reply brief that tory asserts chronological se continuous plaint contain dating from the time of quence of retaliation the Office of Civil wholly ignore that the Second defendants States De of the United Compliance Rights that, im- Complaint has Amended Supreme Court As partment of Justice. fifing Black’s admin- mediately after the “Certain context: in another observed during grievance, follow- istrative and, right single than more wrongs affect three-year period, defendants continu- ing one implicate more than accordingly, can against Black interfer- ously retaliated such Where commands. the Constitution’s tasks, assigned withhold- ing with Black’s alleged, we are not in multiple violations prisoners, to other ing privileges accorded preliminary identifying as a mat the habit confining Black to his cell while wrongfully Rather, character. ‘dominant’ the claim’s ter out of their inmates allowed white provision in constitutional each we examine cells, issuing disciplin- wrongfully false —Ill., County, U.S. v. Cook turn.” Soldal Black, causing the loss ary against tickets 538, 548, 121 L.Ed.2d -, -, good credits. of his time (1992). 8(f) complaint, we read of Civil Federal Rules evaluating Black’s Rule *6 stated This court as a whole. requires this court to construe his Procedure (Zurich), 953 A.G. justice.” in Reishauer Bartholet ... pleadings to do substantial “[a]ll Cir.1992), that while rules, pleading it is for notice the Under complaints with mul- to draft it common at trial. produce is their evidence parties to counts, specifies a sin- of which each tiple default, Here, due to the there defendants’ rule, nothing in the legal or gle statute however, did, was no trial. The requires this. To of Civil Procedure Rules supporting his the facts attempt to set forth discourage it.... contrary, the rules the evidentiary proceeding in an before claims claim; limns the Rule 8 complaint under A damages. court The defen- the district later, and law come fact details of both course, dants, longer contest can no the of court should ask [A] other documents.... damages. They supporting have facts the under set possible relief whether defaulted. consistent be established that could facts pleadings Weighing facts the allegations. all simply viewing each inci- together, and not omitted); (citations Kay see also Id. at isolation, has shown that he dent Black Fields, Cir. lor v. by against the various defen- was retaliated (in 1981) reviewing a civil Black should be award- dants. We find that which a claim for relief if it stated determine physical compensation ed reasonable court noted that the granted, could be spe and harm he suffered. “sketchy” and “short on mental complaint was needed medical treat- complaint, separated that he did not receive ment, Black the facts In his first complained to Greer but and that he Greer contained of the claims into claims. Each three opinion in This court's did not intervene. combined in the sec- portions of what was later separate under each claim but heading did not under ond amended they in total as related supplemental rather considered them com- racial discrimination. (six discrimination and retali- separate Black's claims of racial claims plaint, Black addressed I, at 562. In his total) prevent- See Black ation. his cell and how he was locked in received, separates complaint, Black second amended working, he harassment ed from relief for position two he seeks racial facts into counts: for a clerk that he was the fact trained retaliation. porter position, discrimination back to and then transferred Dismissal C. Several sufficiently alleges personal Lane’s involve- Defendants ment.
The district court dismissed several of being the defendants as not involved The other defendants also personally beatings nd harassment Black. The dis involved in Black’s depriva- constitutional Severs, trict found defendants Al tions. Cowan on two occasions ordered Neal, dridge, jointly Inman Howard and Black to single move from his cell to a double severally dismissed, liable. The court howev refused, cell. explaining pris- er, Cowan, Gross, Littleton, defendants Mc- on psychologist had decided that Black Donough, Fleming, Lane and Greer for lack single should be ain cell because of his heart personal reading involvement. Our attack, age, and numerous threats on his complaint is contrary. Other than by life gang inmate time, members. One Greer,8 each defendant who was dismissed move, when Black refused to Cowan re- specifically named in the and was peatedly beat him. Another time Cowan involved in beatings or other forms of stood as Littleton and others beat Black. upon harassment Black. inflicted Cowan also caused false disciplinary charges example, For the Director to be brought against Black. Gross re- Corrections, Illinois approved peatedly beat Black on one occasion when unjustified disciplinary an ticket issued Black refused to move from single cell to Inman; Aldridge unjustified another dis- cell, a double and also disciplin- caused false ciplinary by Inman; ticket issued and other ary charges brought to be against Black. disciplinary charges Littleton, false Co- Littleton repeatedly beat Black on two occa- they wan Gross initiated beat sions when Black refused to move from his Black. When various defendants refused to single cell, cell to a double also caused let Black out of go cell to work and false disciplinary charges brought to be grievance, upheld Black filed a Lane a com- against Black. McDonough reprimanded a mittee’s decision to refer the matter to the white clerk who was about to be transferred prison librarian take no other action. telling job Black about vacancy. Mc- Donough held,
As this court threatened to has block that official inmate’s meets “personal position transfer so that requirement involvement” would not when “ ‘she acts or available to Black. McDonough fails to act with a subsequent- deliberate or *7 disregard ly plaintiffs reckless Black to porter of ordered return to his constitutional rights, assignment if causing though or even he conduct constitu- had been trained deprivation position. tional the clerk Fleming repeatedly occurs at her direction or ” knowledge attempted her cell, with and to force Black consent.’ Smith v. into double Rowe, (7th Cir.1985) (cita- causing 761 360, F.2d 369 Black to fear health and omitted). Rowe, safety. we held the Director Department of of Corrections liable be- complaint Black’s alleged personal involve- cause the director “knew of the actions of his defendants, ment of all of the excep- with the subordinates which resulted a constitution- Thus, tion of it improper Greer. was for the al violation” and any preven- “failed to take district to court dismiss the other defendants. minimum, action.” tive Id. aAt Lane is presumed to knowledge have of Menard’s D. Procedural Due Process agreement resolution with the of and thus of practices Justice the unlawful at The district court dismissed the failed, however, Menard. He any to procedural take process due aspect of Black’s preventive action and thus Black’s complaint, reasoning that Black had not al- magistrate Greer, properly judge dismissed imposition liability. ment for of See Potter v. Clark, 1206, (7th Chief Cir.1974) Administrative Officer at Al- (per Menard. 497 F.2d 1207 though defendant, curiam) Greer is as a (proper named are "alleg- there to dismiss allegations involving no factual specific him part other than es no act or conduct of on charged that he was with the of administration defendant and the is silent as to the persons Menard and responsible except for all at appearing defendant caption"). for his name in the personal Menard. This is not sufficient involve-
1402
viola-
a claim for
complaint states
v.
Black’s
requirements
leged that
Wolff
by
rights
2963,
process
due
procedural
41
McDonnell,
tion of
418 U.S.
repeatedly
alleging
thus
the defendants
(1974),9
not met
were
935
L.Ed.2d
approved false
a due
filed and
systematically
claim for
state a
Black failed
charges, which result-
requires
unjustified disciplinary
not
process
Due
process violation.
good
satisfied,
loss of
time.
segregation
that the
and the
but also
be
ed in
that Wolff
“unjustified” to
by “some
“false” and
supported
understand
We
disciplinary decision
Lane,
segrega-
resulting
v.
F.2d
857
that the tickets
See Cain
mean
evidence.”
sup-
not
v.
747
were
Hanrahan
(7th Cir.1988);
good
time
tion and loss
1145
Cir.1984)
curiam);
Thus, Black
(7th
(per
stated
ported by
evidence.
1137, 1140
F.2d
Cor-
procedural due
Massachusetts
of his
for violation
Superintendent,
a claim
see also
Hill,
disciplinary
105
deci-
v.
process rights
472 U.S.
because
Inst.
rectional
(1985)
by some evidence.10
supported
356
not
L.Ed.2d
were
86
sions
S.Ct.
comport
(“[Revocation
good time does not
Due Process
E.
Substantive
proce-
requirements
‘the minimum
findings of the
unless
process’
dural due
disregarded
The district
supported
are
disciplinary board
prison
pro
due
that his substantive
claim
(citation omit-
in the record.”
evidence
some
allegation
An
rights were violated.
cess
ted)).
states a
process
deprivation of due
procedural
substantive
under both
default
claim
that because
Again,
note
we
Co.,
Ins.
v.
See Kauth
defendants,
due
process.
against the
judgment entered
Hartford
(7th Cir.1988);
Brown
954 n.
deemed
in Black’s
Univ.,
As addressed alleged the facts chronological in Black’s What follows listing create an inference that against plaintiffs complaint, Black was retaliated exercise rights. his constitutional which are deemed true specifical- result of the ly alleged against default entered the defen- tickets were is- sued in dants. pursuit retaliation for his successful of an complaint. administrative This conduct January-February 1979: Plaintiff was as-
by prison egregious is an officials abuse of signed to porter work as a in the Menard *9 power such as to violate Black’s substantive prison hospital. porters All inmate and ward process rights. Hence, Black stated a attendants were black and all inmate clerks claim for violation of his substantive due were white. Plaintiff soon learned of an process rights and the district improp- upcoming job opening X-ray for an and labo- erly dismissed this claim. ratory inmate clerk hospital and told the
Finally, administrator, we note' that when McDonough, faced with a Sandra that he 12(b)(6) pursuant motion to dismiss thirty years to Rule had experience. of clerical Procedure, of the Federal Rules courts position, Kimpel, white inmate who held the must be mindful not to expecting dismiss a was approved a transfer which was quit plaintiff caused
days a week. This laundry job. subse- person Plaintiff the head Mc- Plaintiff overheard February of 1979. positions in quently inquired about clerk’s inmate for the white Donough reprimand custody unit and in the inmate protective vacancy and threat- telling about the plaintiff kitchen, positions learned that those but McDonough told the transfer. ened to block only by white inmates. were held job if it became could have plaintiff he hot, in a Aldridge put plaintiff July 1982: the clerk trained for Plaintiff was vacant. had closed flooded cell that been McDonough was told that position but then being unfit for human prison medical staff as job and back him off the clerk’s had ordered for three being After confined habitation. assignment. porter days, plaintiff a heart attack. suffered was Kimpel’s transfer Late March 1979: a clerk Plaintiff worked as law October 1982: McDonough’s employee’s and one blocked custody unit from October protective claiming disciplinary report a wrote occa- 1983. On numerous 1982 to December him. plaintiff threatened sions, leaving plaintiff prevented from guilty of the Plaintiff was found April 1979: Severs, Defendants his cell to do his work. infraction, job, his lost personally involved Aldridge, and Neal were house. to a different cell and was transferred often let white the restrictions. Severs Plaintiff filed administrative June 1979: L work while restrict- clerks leave their cells to employment complaint of discrimination ing plaintiff, and two correctional counselors Rights Compliance of the of Civil the Office plaintiff should be had to remind Severs Justice United States Aldridge to work. allowed out his cell (“DOJ”). job white inmates with no classifica- allowed would not let tion out of their cells but Plaintiff was August 1979—June 1980: approached plaintiff Plaintiff out to work. custody protective unit to transferred from occasions about the cell re- Neal on various reason, apparent unit for no segregation but did strictions. Neal offered to intervene job opportunities. had no where he problem practice and the not correct investigative February issued its 1980: DOJ supervisor, Plaintiff’s Darla Stof- continued. job sustaining plaintiffs charge of findings fel, plaintiffs informed Neal of work hours discrimination. responsibilities and asked April Correctional Center 1980: Menard respond. Neal did not be allowed to work. agreement promising to signed a resolution plain- August Specific instance where 1988: jobs qualified appli- open up inmate to all his cell to work. tiff was not allowed out of regard cants without to race. U, griev- November 1983: Plaintiff filed a assigned to work as Late 1980: Plaintiff was during concerning ance confinement work laundry person’s helper and then as head to refer the hours. The committee decided laundry helper, he assisted the person. As librarian, and this deci- matter to the laundry person, was white. The head who upheld sion was Lane. laundry person was allowed out head job quit Plaintiff as law December 1983: days day, cell for thirteen hours seven trying out of over to com- clerk frustration week, out of his cell but was allowed plete job assignments while under con- only day on week- seven hours reassigned as a counsel- finement. He was laundry person days. the head re- After plaintiffs Restrictions on out of or’s clerk. him, signed plaintiff replaced a white harassment, time, con- cell as verbal as well helper. Sergeant plaintiffs inmate became partic- Aldridge, Inman and Howard tinued. privileges associ- Phoenix then reversed restrictions, subjected plaintiff ipated job plaintiff, as head ated with each so that harassment when he tried to do his verbal laundry out of his cell to person, was allowed job. day only on for seven hours a work *10 1, Howard refused to weekdays. helper was al- March On March Plaintiffs white 1981: his work day, plaintiff let out of his cell to do out for thirteen hours a seven lowed with, guards, lems plaintiff could not keep job his as a counselor’s clerk. That day, allowing white inmates out of their while plaintiff was fired position from his as a 2, cells. On March Officer Lee did the same. counselor’s clerk. 4, Aldridge plaintiff On ordered March to March 1985: As plaintiff’s result heart return to his cell after an officer had let attack, age his and numerous threats on plaintiff out to work. White inmates were plaintiff’s by life gang members, inmate pris- allowed to remain out of their cells. psychologist Gupta prescribed on Dr. 19, May plaintiff Howard in locked his 198k: plaintiff be single housed cell for his plaintiff cell had been out for three physical Lane, medical and safety. Neal, of work. hours Howard let white inmates Gross, Fleming, Cowan and Littleton were stay out of their cells. Inman often refused plaintiffs all aware of placed need to be in a cell, plaintiff to out of seeing let his and when single repeatedly cell but attempted to force plaintiff out of his cell continually ha- would him into a double cell. rass him. 7, March 1985: approached Plaintiff was June, 29, Unjustified disciplinary ticket 198k(cid:127) single by his cell Cowan and Littleton and by Aldridge was written ap- and Inman and ordered to move to a double cell with an proved by charging plaintiff refused, unknown inmate. Plaintiff explain- taking protective custody “Kites” out. of the ing that he feared for his safety. and health for the counselor. part mailbox This was The officers entered cell his and repeatedly his disciplin- duties as counselor’s clerk. The plaintiff, injuring severely. beat him ary plaintiffs assignment ticket resulted in June 1986: again ap- Plaintiff was segregation, thirty days, demotion for and proached in Cowan, his cell Littleton and removal from job his counselor’s clerk as well as three unknown correctional offi- July cers, and ordered to move to a double cell. July Chairperson job of the classi- 198k: again Plaintiff refused explained why Dr. fication committee for the protective custody Gupta prescribed had single cell. Littleton plaintiff unit told that he would be reinstated two of the correctional officers entered as a counselor’s clerk he returned to when plaintiff’s cell repeatedly him, injur- beat protective custody and no other inmate ing severely, him while Cowan and the third assigned position. would When by. correctional officer stood plaintiff position, returned to the assign- his 7,1987: cell, plaintiff March While in his given had ments been to white inmates and Gross, approached by lieutenant, an unknown plaintiff was little work left there to do. officers, two unknown correctional September and October Plaintiff com- 198k: ordered move to a double cell. When plained job chairperson classification move, plaintiff refused to Gross and the lieu- receiving paperwork he was not to do plaintiffs tenant entered cell and repeatedly job and that the doing white clerk was him, injuring severely., beat him Following previously plaintiff. work done beatings that occurred on three occasions October Inman ordered Officer Mil- plaintiff move, Littleton, when 198k: refused Co- plaintiff ler to lock during his cell wan Gross false disciplinary caused shift. scheduled work charges brought against plaintiff. to be approved Lane charges causing false Ik, occasions, two Sergeant October On 198k: wrongfully placed to be segregat- Biggs refused to allow out of his cell resulting confinement and illegal ed work, but approximately twenty let other plaintiffs good confiscation of time and in- inmates out of their cells. creasing length sentence. Frailey November Counselor took over 198k: MANION, Judge, dissenting.1 Circuit the position chairperson protective custody Frailey classification Black, committee. On June Muriel an inmate told plaintiff plaintiff’s that because of prob- Illinois, at the Menard Correctional Center agree 1. I with the court’s challenge conclusion in footnote magis- that since Black did not *11 case. For the law of the magistrate through the complaint with an administrative
filed reasons, respectfully dissent. Justice, alleg- I following of States United pris- assigned various officials ing prison that of in violation of race jobs on the basis oner I. contends Black Amendment. the Fourteenth a cam- target of the since been he has that made Black passing statements Certain retaliation, of threats in the form of paign now law of the case the I do constitute not prison assaults, of part the Menard on and I, original magis- In Black us. before se, Black, filed proceeding pro officials. judgment summary granted trate retaliation. discrimination of retaliation. Black’s claim on State the discrimina- court dismissed district The determination, magistrate reaching its summary granted count prison offi- affidavits of two upon the relied this On appeal count. retaliation on the Inman, cials, Aldridge and Officer Sergeant Lane, Black v. reversed. court they had that locked conceded which both ”). Cir.1987) (“Black remand I On him from prevented cell and Black in his a second counsel filed appointed Black’s clerk, job but counselor’s performing reason the complaint. For some amended out of they did so not retaliation that stated filing an the deadline for missed defendants appeal, the security On reasons. but judge magistrate and defaulted. answer respect I in Black with the court issue before damages discrimi- minimal awarded claim was whether the retaliation retaliation dismissed the count and nation affidavits, actually State, had by filing its other) (and a claim. for failure to state counts credibility which could question of created any appealed portion neither side Since summary determined on properly primary re- judgment, the the discrimination correctly Black I court in judgment. The retaliation maining issue claim. appro- the case and that such was concluded complaint that the not clear from It is expec- issue with the priately remanded this July claim stems from retaliation explored further that it would be tation However, magistrate judge filing. Thus, determined, necessary, at trial. if clearly I stated court Black this in Black I to which law the only “decree” tied to that alleged retaliation was apply court’s conclusion was the case would Justice; I thus Department of before choosing to magistrate, believe According to his accept that determination. Black, had made instead of an the officers purport- complaint, the first second credibility determination and impermissible did not occur ed act of official summary inappropriate this was years July more than three until at 562. judgment. Id. 824 F.2d com- Black had filed administrative I was not asked in Black But the court magistrate, relying upon plaint. The did not address— address —and indeed Murphy previous decisions Circuit’s as contained the limited facts whether (7th Cir.1987), and Ben- by themselves suffi complaint were Black’s (7th Cir.1985), Cady, F.2d 335 son v. As I claim retaliation. cient to state a three-year gap precluded found that this earlier, discussion re I’s pointed out part of retaliatory intent on the inference credibility. the issue around volved and dismissed officials keeping Black conclude that locked did not appeal the complaint. On this court con- assign during his scheduled work in his cell magistrate free to was not cludes that retaliation, simply noted but ment was defect because point out this obvious lockup created a explaining the affidavits previously determined in Black I had barring summary judgment. question of fact complaint had sufficient- original that Black’s dismiss, simply moved retaliation, Had the State that this ly stated a claim affidavits, magistrate filed its binding upon the never determination earlier magis- fore, appeal confined damages racial for his claim of trate’s award court, for retaliation and dismissal of his claims trate's brief to the his initial discrimination in process. appeal. There- denial not before us in his that issue is *12 1407 only have been left magistrate’s entry default, would com the the State from which he would have had to plaint, standing lost all to challenge the truth of the alleged determine whether Black had well-pleaded such contained in Black’s com permit plaint. misconduct a Mucci, would reasonable See United States v. Di 879 (7th retaliatory part 1488, intent on Cir.1989); inference the of F.2d 1497 Dundee Ce Menard officials. But as it turned ment Pipe Prods., Co. v. Howard & Concrete out, attorney, Inc., perhaps (7th the State’s 1319, uncon Cir.1983). 722 F.2d 1323 But, vinced that dispose the court would contrary of the intimations, to the court’s the dismissal, complaint by submitted some affi State still right retained the to test the suffi thinking davits this ciency would her allegations boost of the they see if stated o f chances recess. What this strategy actu a claim for may granted. which relief be See achieved, however, ally was to Productions, create issues Alan Neuman Albright, Inc. v. credibility, forcing (9th beyond 1388, thus the issue 862 Cir.1988), F.2d 1392 cert. de pleadings. nied, this 858, For reason the court in 493 168, U.S. 107 (1989) (on I never had the occasion to address L.Ed.2d 124 appeal the defendant sufficiency complaint of the alone to see challenge entitled to sufficiency of the plausible it stated a if claim of complaint retaliation. allegations and its support Therefore, any of the judgment); statements in Black I see also 10 Wright, A. Charles regarding the allega substance Arthur Mary Kane, R. Miller & K. Federal non-binding tions were at most dicta offered Practice § Procedure 2688 at 447-48 expectation (1983) (“it in the that these matters would remains for the court to consider only presentation determined of whether unchallenged facts constitute a They certainly evidence at trial. part legitimate action, not cause of party a since in of the court’s in Black I which default does not admit to mere conclusions of law.”). would constitute of the case. law See Coca- Bottling Schreveport, Cola Co. Inc. To successfully make out a claim for retali- Co., (3rd Coca-Cola F.2d 988 429-30 ation for the exercise of constitutionally a - Cir.1993), denied, -, cert. U.S. 114 protected right, a has burden of (1993) (dicta 126 S.Ct. 239 L.Ed.2d can proving the ultimate fact of retaliation. See predicate ruling not be the to which law of Murphy 833 F.2d 108 applies); the case see also 18 Charles B. Cir.1987); Cady, Benson v.
Wright,
Mary
Kane,
Arthur R. Miller &
K.
(7th Cir.1985).
proving
One method of
retal-
§
Federal Practice
Procedure
4478 at
avoiding dismissal,
iation and of
allege
is to
a
(1983) (law
only
of the case
acts
chronology of events from
which
ultimate
prevent
subsequent ap
a
reconsideration
fact
plausibly
may
retaliation
be inferred.
pellate
matters
were once re
one,
For the
plausible
inference to be a
how-
prior
Therefore,
panel).
solved
a
ever,
must not be
significant gap
there
in
magistrate on remand committed
no error
time between the exercise of protected activi-
treating
not
Black I’s reference to
alle
ty
purported
act
of retaliation. We
gations as law of the case.
previously
have
held that a
gap
five-month
We now have a different issue than
“greatly
any
hadwe
weakens
inference” that an act
in Black I. The
generated
affidavits that
the was
taken
retaliation for the exercise of
questions
factual
Benson,
are not before us.
rights.
Given constitutional
See
default,
Here,
the State’s
we now come
at
back
342.2
of events
chronology
al-
ground zero —the
complaint
leged
as it
Black’s second amended
applies
only
question
retaliation. The
clearly
three-year
gap
reveal
between the
whether the
filing
contained in Black’s
administrative
on June
second amended
sufficiently
4,1979,
purported
stated
and the first
act of retalia-
that,
claim of
It is
upon
retaliation.
true
tion in July of
alleged
1982. Other
acts of
fact,
2.
decision
this
ex-
Circuit
one correctional center to
“immediate-
another
pressly finding
event,
sufficiently
ly” or,
that a
had
no
than two
more
—
alleged retaliatory
litigious
filing
involved a
against prison
intent
in-
months—after
suit
officials.
mate who
he was
Murphy,
transferred
to what he
allege
Also,
do not
pleadings
Black’s
extrinsic
tion;
include whatever
it cannot
certainly
not sub
procedural,
denial of
expanded
glean
may
from
matters we
First,
stantive,
respect to
process.
due
in Black I.
the court
that was before
record
claim,
process
it
procedural
Black’s
due
Co., 853 F.2d
v.
States Ins.
Kush Amer.
plead
Black has failed to
apparent that
Cir.1988).
(7th
can we con
1380, 1382
Nor
complaint Black
allegations.
e
In his
“factual”
count
in
allegations
separate
th
.of
sider
conclusory
fashion
merely asserted
adjudicated
has
which
been
discrimination
“knowingly and false
prison
had
officials
appeal.
In Black’s second
on
and is not
disciplinary
“unjustified”
tickets.
ly” issued
subheading
complaint there is
does Black
in his
Yet nowhere
II —Retaliation For
captioned “Count
“B”
procedural
allege that he was denied
Rights,” under
Exercising Constitutional
forth in
v. McDon
protections first set
alleged act of retaliation
the first
which
Wolff
nell,
41
94
L.Ed.2d
418
S.Ct.
July
U.S.
occurring in
three
incident
(1974),
by this court
and followed
complaint with
years after Black filed
Lane,
Hartford
conclusion,
(7th Cir.1988).
question
there is no
954 n. 4
But here the court
allegations
authority
claims to have found
from
we
accept
this Cir-
must
as
—which
Cain,
true,
supra,
Eighth
given
cuit in
procedural
as well as the
posture of this
Babcock,
Sprouse
Circuit
substantive due to cure Furthermore,
First Amendment violations. Eighth
the issue before the Circuit
Sprouse whether, purposes of 42 § plaintiff’s complaint
U.S.C. al-
leged a violation of a substantive versus a
procedural right. Sprouse, 870 F.2d at proper
452. Viewed in their context it is
clear that passages referenced
Sprouse absolutely nothing have to do with process.
substantive oblique Such au-
thority hardly provides
legal
the solid
under-
lines,
Along
findings given
these same
disciplinary
court's discussion
committee in
issuing
of the "some evidence" standard is irrelevant to
its decision.
merely
this action. That standard
refers to our
limited review of a
committee's find-
Johnson,
5. As to Cale v.