In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4686

WILLIE SIMPSON,

Plaintiff-Appellant,

v.

JANEL NICKEL, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 05-C-232-C—Barbara B. Crabb, Chief Judge.

____________

SUBMITTED MAY 25, 2006—DECIDED JUNE 12, 2006

____________

Before EASTERBROOK, WOOD, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge. Willie Simpson contends

that, after he wrote a letter (and filed a suit) complaining

about abuse by the staff of the prison where he is confined, the targets of his accusations retaliated by issuing

bogus conduct reports and arranging for him to be disciplined: Simpson spent 300 days in segregation and lost 25

days’ recreation privileges. Penalizing a prisoner’s exercise

of the constitutional right to petition for redress of grievances is a constitutional tort. See Hoskins v. Lenear, 395

F.3d 372, 375 (7th Cir. 2005); Black v. Lane, 22 F.3d 1395,

1402-03 (7th Cir. 1994). Yet the district court dismissed

Simpson’s complaint for failure to state a claim on which

relief may be granted. See Fed. R. Civ. P. 12(b)(6). 2005
2 No. 05-4686

U.S. Dist. LEXIS 26182 (W.D. Wis. Oct. 31, 2005), reconsideration denied, 2005 U.S. Dist. LEXIS 29405 (Nov. 23, 2005).

The judge wrote that the complaint was deficient because

Simpson had failed to set out all “elements” of a retaliation

claim—foremost among them that his original allegations

against the staff had been truthful, for there is no constitutional right to lie. See McDonald v. Smith, 472 U.S. 479,

484-85 (1985). According to the district court, a prisoner

must not only allege but also “establish” or “demonstrate”

in the complaint that the original speech was truthful.

Simpson could not do this, the judge wrote, because the

prison’s disciplinary board had found the speech to be false,

and Simpson is bound by that finding unless a state court

sets it aside. See Edwards v. Balisok, 520 U.S. 641 (1997);

Heck v. Humphrey, 512 U.S. 477 (1994). Because Wisconsin’s judiciary offers only the opportunity to seek certiorari

in prison disciplinary matters, however, Simpson has no

means to obtain the plenary review that the district judge

thought essential to his claim. See State ex rel. L’Minggio v.

Gamble, 2003 WI 82, 263 Wis. 2d 55, 667 N.W.2d 1; State ex

rel. Curtis v. Litscher, 2002 WI App. 172, 256 Wis. 2d 787,

650 N.W.2d 43; see also Wis. Stat. §§ 801.02(7)(b),

893.735(2).

This treatment went wrong at the first step: the belief

that complaints must lay out facts corresponding to every

“element” of a legal theory. That is a code-pleading approach, which the Federal Rules of Civil Procedure reject.

One pleads “claims” (which is to say, grievances) rather

than legal theories and factual specifics. See, e.g., McDonald v. Household International, Inc., 425 F.3d 424, 427-28

(7th Cir. 2005); Bartholet v. Reishauer A.G. (Zürich), 953

F.2d 1073, 1077-78 (7th Cir. 1992). The Supreme Court

drove the point home in Swierkiewicz v. Sorema N.A., 534

U.S. 506 (2002), holding that plaintiffs need not allege

either the factual or legal “elements” of a prima facie case

under the employment-discrimination laws. That conclusion
No. 05-4686 3

is equally applicable to every other federal claim. It is why

“[a]ny district judge (for that matter, any defendant)

tempted to write ‘this complaint is deficient because it does

not contain. . .’ should stop and think: What rule of law

requires a complaint to contain that allegation?” Doe v.

Smith, 429 F.3d 706, 708 (7th Cir. 2005) (emphasis in

original). It is also why “[a]ny decision declaring ‘this

complaint is deficient because it does not allege X’ is a

candidate for summary reversal, unless X is on the list in

Fed. R. Civ. P. 9(b).” Kolupa v. Roselle Park District, 438

F.3d 713, 715 (7th Cir. 2006). The truth of a prisoner’s prior

statements is not among the matters that must be pleaded

with particularity, and a complaint therefore may not be

dismissed for omission of this allegation. Simpson’s grievance was set out clearly enough to put the defendants on

notice; no more is required.

What is more, an obligation to allege some matter in a

complaint does not entail an obligation to “establish” that

issue at the pleading stage; support of one’s allegations

comes later, in response to a motion for summary judgment

or at trial. Not even the Securities Litigation Reform Act,

the statute that has moved the farthest from notice pleading for a particular subject matter (securities class actions),

requires proof as opposed to plausible allegations. See, e.g.,

Makor Issues & Rights, Ltd. v. Tellabs, Inc., 437 F.3d 588

(7th Cir. 2006); Asher v. Baxter International Inc., 377 F.3d

727 (7th Cir. 2004). Simpson’s claim rests on 42 U.S.C.

§1983, and there are no heightened pleading requirements

for suits under that statute. See Crawford-El v. Britton, 523

U.S. 574 (1998); Leatherman v. Tarrant County, 507 U.S.

163 (1993). Facts need not be “established” or even alleged

(fact-pleading is unnecessary); a plaintiff receives the

benefit of any fact that could be established later consistent

with the complaint’s allegations. See, e.g., Hishon v. King

& Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355

U.S. 41, 45-46 (1957).
4 No. 05-4686

Defendants contend that the disciplinary board’s finding

is conclusive against Simpson, and if that is so then there

is no point in a remand. Issue preclusion (collateral

estoppel) is an affirmative defense, see Fed. R. Civ. P. 8(c),

and the consideration of matter outside the complaint (such

as the disciplinary board’s finding) requires the district

court to treat the defendant’s motion as one for summary

judgment. If nothing that Simpson could show would stave

off that summary judgment, however, then dismissing the

complaint instead of waiting for a Rule 56 motion was

harmless error.

Whether a given decision has preclusive effect depends on

state law. See 28 U.S.C. §1738. We must accord the board’s

disposition the same effect as a court of Wisconsin would.

Wisconsin’s judiciary does not treat the factual conclusions

of prison disciplinary boards (or any other state agency) as

beyond the power of a court to examine. When a state judge

may review findings of fact in an agency’s decision, then a

federal judge may do so too. See Astoria Federal Savings &

Loan Ass’n v. Solimino, 501 U.S. 104 (1991). By attaching

the disciplinary board’s decision to his complaint, Simpson

assuredly did not vouch for its correctness. See Carroll v.

Yates, 362 F.3d 984 (7th Cir. 2004). He cannot prevail

without proving that he is right and the board wrong, see

Hasan v. Department of Labor, 400 F.3d 1001 (7th Cir.

2005), but the obligation to supply proof comes after the

pleading stage. (The district judge relied on Hasan without

noting that it arose under Rule 56 rather than Rule

12(b)(6), and that Hasan had failed to provide evidence to

back up the complaint’s allegations.)

As defendants see things, Heck and Edwards create a

federal rule of issue preclusion that operates even when

state law allows review of prison disciplinary decisions.

That is not, however, what the Supreme Court said, and

it would not be consistent with §1738. See Marrese v.

American Academy of Orthopaedic Surgeons, 470 U.S. 373
No. 05-4686 5

(1985). The Court held in Heck and Edwards that a prisoner

whose grievance implies the invalidity of ongoing custody

must seek review by collateral attack (28 U.S.C. §§ 2241,

2254, or 2255, or a state-law equivalent). Only after the

custody is over may the prisoner use §1983 to seek damages

against persons who may have been responsible; indeed, the

§1983 claim does not accrue until the custody ends. This is

not because federal courts are bound by decisions of state

administrative agencies, but because as a matter of federal

law any challenge to the fact or duration of custody must

proceed under §2254 or an equivalent statute. See Preiser

v. Rodriguez, 411 U.S. 475 (1973). In such a collateral

challenge the state agency’s (or state court’s) decision may

be reexamined; that alone is enough to show that Heck and

Edwards do not establish free-standing rules of issue or

claim preclusion.

Because Heck and Edwards concern the allocation

between collateral review and damages actions as a matter

of federal law, they have no application when collateral

review is unavailable—either because the plaintiff’s custody

has expired or because he was never “in custody” as a result

of the defendants’ contested actions. See Muhammad v.

Close, 540 U.S. 749, 754-55 (2004); DeWalt v. Carter, 224

F.3d 607 (7th Cir. 2000). Neither disciplinary segregation

nor a reduction in the amount of recreation is a form of

“custody” under federal law; Heck and Edwards thus are

beside the point.

The district court did not mention Muhammad and

misunderstood DeWalt, reading it as if the holding depended on the fact that DeWalt may have been able to

prevail even if the prison disciplinary board’s decision were

deemed correct—while the board’s finding that Simpson is a

liar prevents him from establishing an indispensable

ingredient of his constitutional claim. What Muhammad

and DeWalt hold is unrelated to the details of any plaintiff’s theory. They establish that the doctrine of Heck and
6 No. 05-4686

Edwards is limited to prisoners who are “in custody” as a

result of the defendants’ challenged acts, and who therefore

are able to seek collateral review. Take away the possibility

of collateral review and §1983 becomes available. Simpson

can’t obtain collateral relief in either state or federal court,

so he isn’t (and never was) affected by Heck or Edwards.

Simpson contends that his letter and original suit contained truthful accusations, for which he has been penalized. Defendants contend (and the prison disciplinary board

found) that Simpson’s accusations were false and malicious.

If Simpson is correct, then the defendants have violated his

constitutional rights by penalizing protected speech. If

defendants are correct, then they have not violated

Simpson’s rights—and this suit is itself frivolous, for if

Simpson was lying in the past, then he well knows that he

has no right to recover now, and his attempt to obtain

damages from people who recognized the lie for what it was

must be characterized as an abuse of process. The district

judge did not relish the prospect of resolving such a clash,

but decision is essential. Otherwise prison disciplinary

boards could immunize guards who violate prisoners’ rights,

and the act of penalizing speech would be self-vindicating.

The district judge strongly suspected that Simpson’s

current contentions are false. This is not a good ground for

dismissing a complaint, see Johnson v. Stovall, 233 F.3d

486 (7th Cir. 2000), but if Simpson loses he faces sanctions.

There is no way that the current suit can be plausibly

incorrect: if Simpson loses, it can only be because he was

lying then and is lying now. Frivolous suits may cost

prisoners the privilege of litigating in forma pauperis, see

28 U.S.C. §1915(g), and financial sanctions may be imposed.

If these sanctions are not paid, we have the option of

curtailing further litigation through an order under Support

Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir.

1995). Simpson should reflect on these possibilities before

deciding to continue this litigation.

VACATED AND REMANDED
No. 05-4686 7

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-12-06