|
NITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
JAMES HOSKINS, Plaintiff-Appellant, v. JOHN POELSTRA, et al.,
Defendants-Appellees.
320 F.3d 761; 2003 U.S. App. LEXIS 3664; 55 Fed. R. Serv. 3d (Callaghan) 451
No. 02-2814
February 11, 2003, Submitted
February 28, 2003, Decided
SUBSEQUENT HISTORY: [*1] As Corrected March 3, 2003.
PRIOR HISTORY: Appeal from the United States District Court for the Eastern
District of Wisconsin. No. 02-C-0581. C.N.Clevert, Judge.
HEADNOTE: Although district court order stated that complaint was dismissed
without prejudice, but a judgment was entered in favor of defendants on
landowner's due process claims, the judgment was final and appealable.
Dismissal was then held to be improper.
DISPOSITION: Reversed and remanded.
COUNSEL: JAMES HOSKINS, Plaintiff - Appellant, Pro se, Submitted,
Milwaukee, WI.
For JOHN POELSTRA, Defendant - Appellee: Robert J. Lerner, PERRY, SHAPIRO,
QUINDEL, SAKS, CHARLTON & LERNER, Milwaukee, WI USA.
For CITY OF MILWAUKEE DEPARTMENT OF NEIGHBORHOOD SERVICES, HAROLD JENKINS,
MICHAEL PITTS, JOHN DOE, Defendants - Appellees: Grant F. Langley, MILWAUKEE
CITY ATTORNEY'S OFFICE, Milwaukee, WI.
JUDGES: Before EASTERBROOK, ROVNER, and EVANS, Circuit Judges.
OPINION
EASTERBROOK, Circuit Judge. According to the complaint that James Hoskins
filed pro se, employees of Milwaukee entered his land, demolished his dog
house, and ripped up his flower bed. Building Inspector Michael Pitts told
Hoskins that this had been done because the dog house and flower bed were on
the City's land; Hoskins believes that they were on his side of the property
line and that the searches and seizures are attributable to city officials'
efforts to abet a private land-acquisition scheme. Moreover, Hoskins
contends, the City demolished his property 27 days after giving him 30 days
to act on his own (or, presumably, to protest to higher officials), thus
violating his right to due process of law.
The complaint is well written, and Hoskins's grievance is easy to
understand. At about 2 1/2 single-spaced pages, it meets the description of
Fed. R. Civ. P. 8. The legal theories are well established; Hoskins is
entitled to relief if he can prove what he [*2] alleges, so the complaint
survives a test under Fed. R. Civ. P. 12(b)(6). Nonetheless, the district
judge dismissed the complaint--and without waiting for the defendants to
request this step. District judges have ample authority to dismiss frivolous
or transparently defective suits spontaneously, and thus save everyone time
and legal expense. This is so even when the plaintiff has paid all fees for
filing and service (as Hoskins did). See Rowe v. Shake, 196 F.3d 778, 783
(7th Cir. 1999). But when exercising discretion to review complaints, judges
must take care that initial impressions, and the lack of an adversarial
presentation, not lead to precipitate action that backfires and increases
the duration and cost of the case.
The district judge's eye was caught by the complaint's allegation that John
Poelstra (a private citizen) conspired with the state actors to violate
Hoskins's rights. The judge wrote that "[a] complaint must contain factual
allegations suggesting that the defendants reached a meeting of the minds. .
.. . While Hoskins invoked the term 'conspiracy' numerous times in his
complaint, allegations of a conspiracy are vague and ill-defined, and far
short [*3] of meeting the requirement that a claim of conspiracy be
pleaded with specificity." (Citations omitted.) The district judge then
dismissed the complaint "for failure to state a claim." The order states
that dismissal is without prejudice. When a court dismisses without
prejudice only the complaint, and thus invites refiling, it is inappropriate
to enter a judgment--but in this case the court did so, in the form
prescribed by Fed. R. Civ. P. 58, dismissing the "case" without any
suggestion that Hoskins was entitled to plead again. Understandably
perplexed about what he was supposed to do next, Hoskins appealed.
An order dismissing a complaint without prejudice is not final, and thus not
appealable under 28 U.S.C. 1291, because the plaintiff is free to amend
his pleading and continue the litigation. See, e.g., Strong v. David, 297
F.3d 646, 648 (7th Cir. 2002); Furnace v. Southern Illinois University, 218
F.3d 666, 669 (7th Cir. 2000). But if an amendment would be unavailing, then
the case is dead in the district court and may proceed to the next tier.
See, e.g., Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002); [*4] Larkin
v. Galloway, 266 F.3d 718, 721 (7th Cir. 2001); United States v. Milwaukee,
144 F.3d 524, 528 n. 7 (7th Cir. 1998). The district judge sent inconsistent
signals: on the one hand his order stated that the "complaint" was dismissed
"without prejudice"; on the other hand, the order stated that the dismissal
was for "failure to state a claim" (which unlike a pleading gaffe usually is
a terminal problem) and a Rule 58 judgment dismissing the "case" was entered
in defendants' favor. It seems best to take the judgment on its own terms,
see Furnace, 218 F.3d at 669, which means that the decision is final.
Appellate jurisdiction ought to be determined mechanically, without guessing
at the district judge's expectations. See Budinich v. Becton Dickinson &
Co., 486 U.S. 196, 202-03, 100 L. Ed. 2d 178, 108 S. Ct. 1717 (1988). When
the district court's resolution looks both ways, the only safe route is to
treat it as final: the alternative lays a trap for unwary (or even wary)
litigants, who may forego appeal in reliance on the "without prejudice"
language only to learn later, and to their sorrow, that the original order
[*5] was appealable and the time for appellate review has lapsed. District
judges can avoid problems by distinguishing consistently between dismissing
a pleading and dismissing the suit; when they do both simultaneously,
however, an immediate appeal is proper.
This complaint should not have been dismissed. The fundamental
allegations--unreasonable searches and seizures, denial of notice and an
opportunity to be heard, and an attempt to take property for private
use--rely on established legal theories, which, unfortunately, the district
judge did not mention when dismissing the suit. The complaint does not
contain all of the facts that will be necessary to prevail, but a filing
under Rule 8 is not supposed to do that; it should be "short and plain" and
suffices if it notifies the defendant of the principal events, as this
document does. Rule 8 does not require--or permit district judges to
require--fact pleading. So the Supreme Court forcefully held in Swierkiewicz
v. Sorema N. A., 534 U.S. 506, 152 L. Ed. 2d 1, 122 S. Ct. 992 (2002). See
also, e.g., Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); Bennett v.
Schmidt, 153 F.3d 516 (7th Cir. 1998). [*6] Federal practice uses a
notice-pleading system, not a code-pleading system. See Bartholet v.
Reishauer A.G. (Zurich), 953 F.2d 1073 (7th Cir. 1992).
This goes for allegations of conspiracy too. (Conspiracy matters only with
respect to Poelstra; the other defendants are state actors, and thus
amenable to suit under 42 U.S.C. 1983, by virtue of their offices.) Rule
9(b) has a short list of matters (such as fraud) that must be pleaded with
particularity; conspiracy is not among them.
|
| |
| |
|
